Petition for Writ of Certiorari — Etihad Airways P.J.S.C., Petitioner v. Jane Doe, et vir
Supreme Court briefJan 4, 2018
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No.
In the
Supreme Court of the United States
ETIHAD AIRWAYS P.J.S.C.,
Petitioner,
– v. –
JANE DOE; JOHN DOE, husband and wife,
Respondents.
____________________________
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Of Counsel:
Daniel E. Correll
Philip R. Weissman
Andrew J. Harakas
Counsel of Record
CLYDE & CO US LLP
Attorneys for Petitioner
The Chrysler Building
405 Lexington Avenue,
16th Floor
New York, New York 10174
(212) 710-3900
i
QUESTION PRESENTED
Whether Article 17(1) of the Montreal Convention
allows recovery for mental or psychic injuries as
“damage sustained,” where an “accident” causes a
“bodily injury” but the mental or psychic injuries are
not caused by or do not flow from the “bodily injury”?
ii
PARTIES TO THE PROCEEDING
The following persons and entities were parties
before the United States Court of Appeals for the
Sixth Circuit:
1. Petitioner Etihad Airways P.J.S.C.
2. Respondents Jane Doe and her husband John
Doe. Pursuant to Order dated October 29, 2013, the
District Court granted Respondents’ Ex Parte Motion
for a Protective Order and permitted Respondents to
maintain the action using pseudonyms “Jane Doe and
John Doe” in place of their true identities. Order
Granting Ex Parte Motion for Protective Order, Doe v.
Etihad Airways, No. 13-14358, Docket Entry No. 5.
(E.D. Mich. Oct. 29, 2013).
iii
RULE 29.6 CORPORATE DISCLOSURE
STATEMENT
Etihad Airways P.J.S.C. is a corporate entity
organized and existing under the laws of the United
Arab Emirates (“UAE”). At the time this action was
filed in the District Court, Etihad Airways P.J.S.C.
was wholly owned by the Government of Abu Dhabi,
a political subdivision of the UAE. On June 17, 2015,
Etihad Aviation Group P.J.S.C. was formally
incorporated under UAE law and currently owns
100% of Etihad Airways P.J.S.C. There is no publicly
held company owning 10% or more of the Etihad
Airways P.J.S.C.’s stock.
v
TABLE OF CONTENTS
Page
QUESTION PRESENTED.................................
i
PARTIES TO THE PROCEEDING ...................
ii
RULE 29.6 CORPORATE DISCLOSURE
STATEMENT..................................................
iii
TABLE OF AUTHORITIES ...............................
ix
OPINIONS BELOW ...........................................
1
STATEMENT OF THE BASIS
FOR JURISDICTION .....................................
1
TREATY PROVISIONS INVOLVED ................
2
STATEMENT OF THE CASE
A. The Nature of the Case ...........................
3
B. Statement of the Relevant Facts ............
4
C. The Decision of the District Court ..........
6
D. The Decision of the Court
of Appeals .................................................
7
REASONS FOR GRANTING THE WRIT .........
9
I.
THE DECISION BELOW CONFLICTS
WITH THE ELEVENTH AND FIFTH
CIRCUITS BECAUSE IT ALLOWS
THE RECOVERY OF MENTAL
INJURIES EVEN IF THEY ARE
UNRELATED TO THE BODILY
INJURY....................................................
13
vi
A. The Eleventh Circuit Jacob
Decision .............................................
13
B. The Fifth Circuit Bassam
Decision .............................................
15
C. The Sixth Circuit Decision Below ....
16
II. THE DECISION BELOW CONFLICTS
WITH THE COURT’S DECISIONS IN
FLOYD AND ZICHERMAN AND THE
PLAIN TEXT OF ARTICLE 17(1) ..........
18
A. The Decision Below Allowing
Recovery of Mental Injuries as
“Damages Sustained” Conflicts
with Floyd and Zicherman ...............
19
B. The Decision Below Creates a
New Causation Requirement
Not Supported by the Text of
Article 17(1) .......................................
21
III. THE QUESTION PRESENTED IS
IMPORTANT AS THE COURT BELOW
REJECTED THE WELL-SETTLED
CONVENTION RULE REQUIRING A
CAUSAL CONNECTION BETWEEN
THE BODILY AND MENTAL INJURY
DESPITE THE EXPRESS INTENT OF
THE DRAFTERS TO PRESERVE
WARSAW PRECEDENT.........................
23
IV. THE DECISION BELOW CONFLICTS
WITH THE DECISIONS OF OTHER
STATE PARTIES TO THE MONTREAL
CONVENTION ........................................
27
vii
CONCLUSION ...................................................
29
APPENDIX
Order Denying Petition for Rehearing en banc
from the United States Court of Appeals,
Sixth Circuit (October 6, 2017) ......................
1a
Judgment from the United States Court of
Appeals, Sixth Circuit (August 30, 2017) ......
3a
Opinion Reversing the District Court’s PartialSummary Judgment Order and Remanding
this Matter for Further Proceedings from
the United States Court of Appeals,
Sixth Circuit (August 30, 2017) .....................
5a
Opinion and Order Granting Defendant’s
Motion for Partial Summary Judgment
from the United States District Court
for the Eastern District of Michigan
(October 13, 2015) ...........................................
65a
Stipulation and Order of Dismissal With
Prejudice and Without Costs from the
United States District Court for the Eastern
District of Michigan (December 16, 2015) .....
71a
Convention for the Unification of Certain
Rules for International Carriage by
Air Done at Montreal on the 28th day
of May, 1999 (Montreal Convention) .............
75a
ix
TABLE OF AUTHORITIES
Page(s)
Cases
Air France v. Saks,
470 U.S. 392 (1985).................................. 10n.3, 27
Alvarez v. Am. Airlines, Inc.,
1999 WL 691922 (S.D.N.Y.
Sept. 7, 1999) ...................................... 10-11n.6, 26
American Airlines v. Georgeopoulos (No 2),
[1998] N.S.W.C.A. 273 (Australia) .................
27
Bassam v. Am. Airlines, Inc.,
287 F. App’x 309 (5th Cir. 2008) ............ 12, 15, 16
Booker v. BWIA West Indies Airways Ltd.,
2007 WL 1351927 (E.D.N.Y. May 8, 2007),
aff’d, 307 F. App’x 491 (2d Cir. 2009) ............
12
Carey v. United Airlines,
255 F.3d 1044 (9th Cir. 2001)......................... 12n.8
Eastern Air Lines v. Floyd,
499 U.S. 530 (1991)...................................... passim
Ehrlich v. Am. Airlines, Inc.,
360 F.3d 366 (2d Cir. 2004) ......................... passim
El Al Israel Airlines, Ltd. v. Tseng,
525 U.S. 155 (1999)............................ 10n.3, 20, 21
In re Air Crash at Little Rock Ark.,
on June 1, 1999,
291 F.3d 503 (8th Cir. 2002), cert. denied
sub nom., Lloyd v. Am. Airlines, Inc.,
537 U.S. 974 (2002)............................ 10n.5, 11, 20
x
In re Air Crash at Taipei, Taiwan
on October 31, 2000,
2004 WL 5642007 (C.D. Cal. Sept. 3, 2004) .... 10n.6
In re Aircrash Disaster Near Roselawn, Ind.,
on Oct. 31, 1994,
954 F. Supp. 175 (N.D. Ill. 1997) ........... 11, 23, 27
In re Inflight Explosion on Trans World
Airlines, Inc. Aircraft Approaching
Athens, Greece on Apr. 2, 1986.,
778 F. Supp. 625 (E.D.N.Y. 1991),
rev’d sub nom. on other grounds
Ospina v. Trans World Airlines, Inc.,
975 F.2d 35 (2d Cir. 1992) .............................. 11n.6
Jack v. Trans World Airlines, Inc.,
854 F. Supp. 654 (N.D. Cal. 1994) ................. 11n.6
Jacob v. Korean Air Lines Co.,
136 S. Ct. 267 (2015).......................................
14
Jacob v. Korean Air Lines Co.,
606 F. App’x 478 (11th Cir. 2015),
cert. denied, 136 S. Ct. 267 (2015) ............... passim
Katin v. Air France-KLM, S.A.,
2009 WL 1940363 (E.D. Tex. Jul. 2, 2009) ....
12
King v. Bristow Helicopters Ltd.,
UKHL 7, [2002] 2 A.C. 628 (U.K.) .................
27
Kruger v. United Air Lines, Inc.,
481 F. Supp. 2d 1005 (N.D. Cal. 2007) ..........
12
Kruger v. Virgin Atl. Airways, Ltd.,
976 F. Supp. 2d 290 (E.D.N.Y 2013),
aff’d, 578 F. App’x 51 (2d Cir. 2014) ..............
12
xi
Ligeti v. British Airways PLC,
2001 WL 1356238 (S.D.N.Y. Nov. 5, 2001) .... 10n.6
Longo v. Air France,
1996 WL 866124 (S.D.N.Y.
Jul. 25, 1996)...................................... 11n.6, 19, 26
Naqvi v. Turkish Airlines, Inc.,
80 F. Supp. 3d 234 (D.D.C. 2015) ...................
12
Olympic Airways v. Husain,
540 U.S. 644 (2004)......................................... 10n.3
Pel-Air Aviation Pty Ltd v. Casey,
[2017] NSWCA 32 (Australia) [2017].............
28
Plourde v. Service Service aérien F.B.O. inc.
(Skyservice), 2007 QCCA 739 (Canada) .........
27
Sanches-Naek v. TAP Portugal, Inc.,
260 F. Supp. 3d 185 (D. Conn. 2017) .............
12
Schaefer-Condulmari v. U.S. Airways
Grp., LLC,
2012 WL 2920375 (E.D. Pa. Jul. 16, 2012) ....
12
Terrafranca v. Virgin Atl. Airways Ltd.,
151 F.3d 108 (3d Cir. 1998) ............................ 12n.8
Vumbaca v. Terminal One Grp. Ass’n L.P.,
859 F. Supp. 2d 343 (E.D.N.Y. 2012) .............
12
Wencelius v. Air France, Inc.,
1996 WL 866122 (C.D. Cal. Feb. 29, 1996) .... 11n.6
Wettlaufer v. Air Transat A.T. Inc.,
2013 BCSC 1245 (Canada) .............................
28
Zicherman v. Korean Air Lines Co., Ltd.,
516 U.S. 217 (1996)...................................... passim
xii
Treaties and Statutes
Convention for the Unification of Certain
Rules for International Carriage by Air,
done at Montreal on 28 May 1999, ICAO
Doc. No. 9740 (entered into force November
4, 2003), reprinted in S. Treaty Doc. 106-45,
1999 WL 33292734 (“Montreal
Convention”) ................................................ passim
Convention for the Unification of Certain
Rules Relating to International
Transportation by Air, Oct. 12, 1929, 49
Stat. 3000, T.S. No 876 (1934) (reprinted in
note following 49 U.S.C.A. § 40105 (1997))
(“Warsaw Convention”) ............................... passim
Foreign Sovereign Immunities Act, Pub. L.
94–583, 90 Stat. 2891 (1976) ..........................
3
28 U.S.C. § 1254(1) .............................................
1
28 U.S.C. § 1291 .................................................
3
28 U.S.C. § 1330(a) .............................................
3
28 U.S.C. § 1331 .................................................
3
28 U.S.C. § 1603(a) .............................................
3
Other Authorities
Brief for the United States as Amicus Curiae,
2003 WL 23497831 (2d Cir. Aug. 18, 2003)
(No. 02-9462) ................................................... 12, 24
Letter of Submittal, S. Treaty Doc. No. 106-45,
1999 WL 33292734 (2000) ..............................
25
Petition for a Writ of Certiorari, 2015 WL
4776723 (U.S. Aug. 11, 2015) (No. 15-194) ....
14
xiii
Plaintiffs-Appellants’ Brief on Appeal,
2016 WL 1380931 (6th Cir. Apr. 4, 2016)
(No. 16-1042) ................................................... 10n.4
S. Exec. Rep. No. 108-8 (2003) ........................... 17, 25
1
Petitioner Etihad Airways P.J.S.C. (“Etihad”)
respectfully petitions for a writ of certiorari issue to
review the judgment and opinion of the United States
Court of Appeals for the Sixth Circuit entered on
August 30, 2017.
OPINIONS BELOW
The Opinion of the Court of Appeals for the Sixth
Circuit is officially reported at 870 F.3d 406 (6th Cir.
Aug. 30, 2017) and is reproduced in Appendix (“A”)
hereto at A 5a-64a.
The Order of the Court of Appeals for the Sixth
Circuit denying Rehearing and Rehearing En Banc
was entered on October 6, 2017, is not officially
reported, and is reproduced at A 1a.
The Opinion and Order Granting Defendant’s
Motion for Partial Summary Judgment of the District
Court is unofficially reported at 2015 WL 5936326
(E.D. Mich. Oct. 13, 2015) and is reproduced at A 65a70a.
The Stipulation and Order of Dismissal with
Prejudice of the District Court was entered on
December 16, 2016 and is reproduced at A 71a-74a.
STATEMENT OF THE BASIS
FOR JURISDICTION
The Judgment and Opinion of the Court of Appeals
for the Sixth Circuit were entered on August 30, 2017.
A 3a, 5a. The Order of the Court of Appeals for the
Sixth Circuit denying Rehearing and Rehearing En
Banc was entered on October 6, 2017 (A 1a), and this
Petition has been filed within 90 days of that date.
The jurisdiction of the Court is invoked under 28
U.S.C. § 1254(1).
2
TREATY PROVISIONS INVOLVED
The applicable treaty provision involved is Article
17(1) of the Convention for the Unification of Certain
Rules for International Carriage by Air, done at
Montreal on 28 May 1999, ICAO Doc. No. 9740
(entered into force Nov. 4, 2003), reprinted in S.
Treaty Doc. 106-45, 1999 WL 33292734 (“Montreal
Convention”). The full text of the Montreal
Convention is reproduced at A 75a-108a.
Also relevant is Article 17 of the Warsaw
Convention1, the predecessor treaty of the Montreal
Convention, as the terms of Article 17(1) of the
Montreal Convention are materially identical to the
terms of Article 17 of the Warsaw Convention. Article
17 of the Warsaw Convention reads:
The carrier shall be liable for damage sustained
in the event of the death or wounding of a
passenger or any other bodily injury suffered by
a passenger, if the accident which caused the
damage so sustained took place on board the
aircraft or in the course of any of the operations
of embarking or disembarking.
49 Stat. 3018.
1
Convention for the Unification of Certain Rules Relating to
International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000,
T.S. No 876 (1934) (reprinted in note following 49 U.S.C.A. §
40105 (1997)) (“Warsaw Convention”).
3
STATEMENT OF THE CASE
A. The Nature of the Case
Plaintiffs-Respondents Jane Doe and her husband
filed an action against Etihad seeking to recover
damages for injuries allegedly sustained by Doe while
a passenger on Etihad Flight EY151 from Abu Dhabi,
UAE to Chicago on August 6, 2013. A 9a. Doe claimed
that during the flight as she reached into the seatback
pocket of an adjacent seat, her left hand came into
contact with a hypodermic needle. A 6a. Doe sought to
recover from Etihad for both her physical injury and
her “mental distress, shock, mortification, sickness
and illness, outrage and embarrassment from natural
sequela of possible exposure to” various diseases. A
7a. The crux of Doe’s claim was her fear of potentially
contracting HIV/Hepatitis following contact with the
hypodermic needle. Id. Her husband claimed loss of
consortium. A 7a.
Plaintiffs-Respondents filed the action in the
United States District Court for the Eastern District
of Michigan on October 15, 2013, based upon 28 U.S.C.
§ 1331 (federal question) as this action is governed
exclusively by the Montreal Convention. A 9a.
Jurisdiction also existed pursuant to 28 U.S.C. §
1330(a) because Etihad was a foreign state as defined
by 28 U.S.C. § 1603(a) and, thus, subject to the
provisions of the Foreign Sovereign Immunities Act,
Pub. L. 94–583, 90 Stat. 2891 (1976). Id. The
jurisdiction of the Court of Appeals was based upon 28
U.S.C. § 1291.
It is undisputed that the liability of Etihad is
governed exclusively by the Montreal Convention as
the incident occurred during the course of
“international carriage” by air within the meaning of
4
Article 1 of the Convention. See Montreal Convention,
Article 1 (A 76a).2 As with Article 17 of the Warsaw
Convention, Article 17(1) of the Montreal Convention
creates air carrier liability for bodily injury where (1)
there has been an “accident,” which (2) caused the
“bodily injury,” and (3) the accident took place on
board the aircraft or during embarking or
disembarking. A 84a; see Eastern Air Lines v. Floyd,
499 U.S. 530, 535-36 (1991).
This Petition presents the legal question of
whether, as a matter of treaty law, the phrase “bodily
injury” in Article 17(1) of the Montreal Convention
allows for recovery of mental injuries if unconnected
to the bodily injury.
B. Statement of the Relevant Facts
The following facts, as set forth by the Court of
Appeals, are not disputed.
Jane Doe and her eleven-year-old daughter were
traveling on Etihad round-trip from Chicago to
Bengaluru, India, with a scheduled stop in Abu Dhabi,
UAE. A 6a. After boarding Flight EY151 in Abu Dhabi
for their flight to Chicago and while seated, the knob
which holds the tray table in an upright position on
the back of the seat in front of Doe fell to the floor. A
6a. Doe’s daughter picked up the knob from the floor
and handed it to Doe who then dropped the knob into
the small mesh seatback pocket in front of her
2
Doe’s alleged injuries were sustained during “international
carriage” by air because her place of departure and place of
destination were situated within the territory of a State Party
(the United States), and there was an agreed stopping place
within the territory of another State (UAE and India). See
Montreal Convention, Article 1(2) (A 76a).
5
daughter’s seat. A 6a. For the duration of the 14-hour
flight, Doe was unable to stow her tray table in the
upright position. A 6a.
When it came time to descend for landing in
Chicago, an Etihad flight attendant (unaware of the
detached knob) provided Doe with the familiar
reminder to place her tray table in the upright and
locked position for landing. A 6a. Doe could not comply
and then reached into the seatback pocket to retrieve
the fallen knob to aid in explaining the problem. A 6a.
But, when she reached into the pocket, she was
unexpectedly pricked by a hypodermic needle from an
insulin syringe that was in the seatback pocket. A 6a,
8a. She immediately pulled her hand out of the small
seatback pocket and placed it on the tray table where
she saw a drop or two of blood from her finger. A 6a.
When Doe was pricked by the needle, the passenger
seated in the aisle seat to her right heard her exclaim,
“ouch,” and claims he saw her finger bleeding. A 8a.
Doe advised an Etihad flight attendant that she had
been pricked by a needle. A 8a. The flight attendant
returned with her supervisor who gave Doe an
antiseptic wipe, which she used to wipe her finger,
and a Band-Aid, which the supervisor himself
wrapped around her finger. A 8a. The cabin manager
wrote a report of the incident and a flight attendant
recommended that Doe see a doctor. A 8a.
The next day, Doe saw a family physician, who
noted a “small needle poke” on her finger. A 8a. She
was prescribed medication for possible exposure to
hepatitis, tetanus, and HIV, and underwent several
rounds of testing over the following year. A 8a. All
tests came back negative. A 8a. Nevertheless, Doe
claimed that she refrained from sexual intercourse
6
with her husband and from sharing food with her
daughter until one year after the incident, when her
doctor told her that she could be certain that she had
not contracted a disease from the needlestick. A 9a.
Doe declined Etihad’s offer to reimburse her for
medical expenses shortly after the incident and filed
suit on October 15, 2013. A 9a.
C. The Decision of the District Court
Upon the conclusion of discovery, Etihad filed a
motion for partial summary judgment seeking
dismissal of Doe’s claim for mental injuries relating to
her fear of contracting a communicable disease as not
recoverable under the Montreal Convention or,
alternatively, Michigan law. A 10a. Etihad also moved
to dismiss the derivative claim for loss of consortium
by Doe’s husband.
Etihad did not dispute that an Article 17 “accident”
caused Doe to suffer a “bodily injury.” Rather, Etihad
argued that Doe’s claims for mental injuries for fear
of contagion were not recoverable as they were not
caused by the “bodily injury” (the small hole in her
finger) but by the nature of the instrumentality of that
injury (the needle). A 10a.
In the alternative, Etihad argued that even if Doe’s
mental injuries for fear of contagion satisfied the
Article 17(1) “bodily injury” requirement, damages for
such mental injuries were not “legally cognizable”
under Michigan law, the applicable domestic damage
law. A 11a, 60a.
The District Court agreed and granted partial
summary judgment in favor of Etihad. Relying on the
rule adopted by all Circuit Courts addressing this
issue under the Montreal and Warsaw Conventions,
7
the District Court held that: (a) recovery for mental
injuries is permitted only to the extent the distress is
caused by the physical injuries sustained, and (b)
Plaintiff’s mental distress damages were not caused
by her physical injury. A 68a. The court reasoned:
It is not the physical needle prick itself that
caused Plaintiff’s distress, but the possibility that
she may have been exposed to an infectious
disease. Plaintiff’s emotional distress damages
are not available under the Montreal Convention,
which provides the exclusive remedy. See El Al
Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 161
(1999) (recovery for injury suffered on board
aircraft “if not allowed under the Convention, is
not available at all.”).
A 68a.
In light of this holding, the District Court did not
reach Etihad’s alternative argument that such
damages were not “legally cognizable” under
Michigan law. A 60a.
Following the Court’s ruling, the parties reached a
settlement of the remaining claims for bodily injury,
physical pain and suffering and economic damages. A
final Order dismissing the case was entered on
December 16, 2015 (A 71a-74a), and PlaintiffsRespondents appealed.
D. The Decision of the Court of Appeals
The Court of Appeals reversed the District Court’s
partial summary judgment order. Rejecting Montreal
Convention precedent from the Fifth and Eleventh
Circuits and Warsaw Convention precedent from the
Second and Eighth Circuits holding that only mental
injuries caused by a bodily injury are recoverable, the
8
Court below found that “mental injuries are
recoverable [as “damage sustained”] if they are caused
either by a compensable bodily injury or by the
accident that causes a compensable bodily injury.” A
48a-49a.
The Court of Appeals summarized its holding as
follows:
To prevail on a claim for damages under Article
17(1), a plaintiff must prove that (1) there was an
“accident,” defined as “an unexpected or unusual
event or happening that is external to the
passenger,” Saks, 470 U.S. at 405, 105 S.Ct. 1338;
(2) the accident happened either “on board the
aircraft” or during “the operations of embarking
or disembarking”; and (3) the accident caused
“death or bodily injury of a passenger.” The
carrier is then liable for damage sustained, which
we interpret to include emotional or mental
damages, so long as they are traceable to the
accident, regardless of whether they are caused
directly by the bodily injury.
A 58a (emphasis in original).
Having concluded that the Convention is not a bar
to Doe’s claims for mental injuries, the Court below
followed the Court’s decision in Zicherman v. Korean
Air Lines Co., Ltd., 516 U.S. 217, 230 (1996), and
found that “Michigan’s substantive damages laws …
govern the measure of any recovery” and remanded
the case to the District Court “to determine, within
the bounds of what Michigan damages laws allow,
what specific kinds of damages—such as emotional
distress, mental anguish, fear of contagion, loss of
consortium, and so on—Plaintiffs are entitled to
recover….” A 63a.
9
Etihad’s Petition for Panel Rehearing and
Rehearing En Banc was denied by the Court below on
October 6, 2017. A 1a.
REASONS FOR GRANTING THE WRIT
As with the Warsaw Convention, Article 17(1) of the
Montreal Convention “sets forth conditions under
which an international air carrier can be held liable
for injuries to passengers.” Floyd, 499 U.S. at 532–33.
Article 17(1), which is materially identical to Warsaw
Article 17, reads:
The carrier is liable for damage sustained in case
of death or bodily injury of a passenger upon
condition only that the accident which caused the
death or injury took place on board the aircraft or
in the course of any of the operations of
embarking or disembarking.
A 84a. Thus, as with the Warsaw Convention, carrier
liability under the Montreal Convention only arises if
an “accident” causes the “death or bodily injury” of a
passenger.
In Floyd, 499 U.S. 530, the Court analyzed the
meaning of “bodily injury” as used in Article 17 of the
Warsaw Convention and held that carriers could not
be held liable for purely mental injuries because of the
absence of the required “death or bodily injury.”
However, the Court “express[ed] no view as to
whether passengers can recover for mental injuries
that are accompanied by physical injuries.” Id. at 552.
The issue in this case presents the question left
open by the Court in Floyd under the Warsaw
Convention.
Neither the Court below nor Respondents disputed
the continued applicability of Floyd or any other of
10
this Court’s decisions3 interpreting the Warsaw or
Montreal Conventions.4 See A 42a. Rather, the Court
below rejected the post-Floyd cases limiting recovery
for mental injury to those flowing from the bodily
injury.
The post-Floyd courts uniformly agreed that Article
17 of the Warsaw Convention does not completely
prohibit recovery for mental injuries when there is a
requisite bodily injury, but the courts differed as to
the circumstances under which such injuries were
recoverable.
The mainstream view that quickly emerged and
was adopted by all post-Floyd Circuit Courts of
Appeal5 and most District Courts6 is that Article 17
3
See Air France v. Saks, 470 U.S. 392 (1985) (interpreting Article
17 term “accident”); Zicherman, 516 U.S. 217 (interpreting
Article term 17 “damage sustained” and effect of Article 24); El
Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999) (interpreting
Articles 17 and 24 to find the Convention exclusive); Olympic
Airways v. Husain, 540 U.S. 644 (2004) (interpreting Article 17
“accident” to include failure to assist ailing passenger).
4
Indeed, in the Court below, Respondents never challenged the
mainstream view and simply argued that “Doe’s mental injuries,
including her fear-of-disease, mental anguish, emotional
distress, loss of certain pleasures of life, humiliation, and
outrage, all ‘result from,’ ‘flow from’ or are ‘caused by’ the
needlestick….” Plaintiffs-Appellants’ Brief on Appeal, 2016 WL
1380931 at 22 (6th Cir. Apr. 4, 2016)(No. 16-1042).
5
Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 400 (2d Cir. 2004);
In re Air Crash at Little Rock Ark., on June 1, 1999, 291 F.3d 503,
510 (8th Cir.), cert. denied sub nom., Lloyd v. Am. Airlines, Inc.,
537 U.S. 974 (2002).
6
See In re Air Crash at Taipei, Taiwan on October 31, 2000, 2004
WL 5642007 (C.D. Cal. Sept. 3, 2004); Ligeti v. British Airways
PLC, 2001 WL 1356238, at *4 (S.D.N.Y. Nov. 5, 2001); Alvarez v.
11
allows recovery for mental injuries only if they are
caused by or proximately flow from the “bodily injury”
caused by the “accident.” The Court below expressly
rejected Ehrlich v. Am. Airlines, Inc., 360 F.3d 366 (2d
Cir. 2004) and did not address In re Air Crash at Little
Rock Ark., on June 1, 1999, 291 F.3d 503, 509 (8th
Cir.), cert. denied sub nom., Lloyd v. Am. Airlines, Inc.,
537 U.S. 974 (2002).
The lone ruling to the contrary was In re Aircrash
Disaster Near Roselawn, Ind., on Oct. 31, 1994, 954 F.
Supp. 175, 178-79 (N.D. Ill. 1997), which held that
“bodily injury” is merely a threshold requirement
that, once established, allows the plaintiff to recover
for all mental injuries whether or not those mental
injuries were caused by some physical injury incurred
in the accident.
The Roselawn holding, which is similar to that of
the Court below, has been rejected by all appellate
courts7 and is contrary to the interpretation of Article
17 advanced by the United States in the Amicus brief
filed in Ehrlich that Article 17 of the Warsaw
Convention “allows for recovery of damages arising
out of a bodily injury sustained in an accident
including any mental injuries that may arise from
Am. Airlines, Inc., 1999 WL 691922, at *5 (S.D.N.Y. Sept. 7,
1999); Longo v. Air France, 1996 WL 866124, at *2 (S.D.N.Y. Jul.
25, 1996); Wencelius v. Air France, Inc., 1996 WL 866122, at *1
(C.D. Cal. Feb. 29, 1996); Jack v. Trans World Airlines, Inc., 854
F. Supp. 654, 668 (N.D. Cal. 1994); In re Inflight Explosion on
Trans World Airlines, Inc. Aircraft Approaching Athens, Greece
on Apr. 2, 1986., 778 F. Supp. 625, 637 (E.D.N.Y. 1991), rev’d sub
nom. on other grounds Ospina v. Trans World Airlines, Inc., 975
F.2d 35 (2d Cir. 1992).
7
See Ehrlich, 360 F.3d at 387-88; Little Rock, 291 F.3d at 510.
12
that bodily injury, such as pain and suffering or other
emotional distress (if permitted by local law.”). Brief
for the United States as Amicus Curiae, 2003 WL
23497831, *18 (2d Cir. Aug. 18, 2003) (No. 02-9462).
All courts interpreting the Montreal Convention
have continued to follow the mainstream view and
find that mental injuries are not recoverable under
Article 17(1) of the Montreal Convention unless they
were caused by physical injuries. See Jacob v. Korean
Air Lines Co., 606 F. App’x 478, 482 (11th Cir. 2015),
cert. denied, 136 S. Ct. 267 (2015); Bassam v. Am.
Airlines, Inc., 287 F. App’x 309, 317 (5th Cir. 2008);
Sanches-Naek v. TAP Portugal, Inc., 260 F. Supp. 3d
185, 196 (D. Conn. 2017); Naqvi v. Turkish Airlines,
Inc., 80 F. Supp. 3d 234, 241 (D.D.C. 2015); Kruger v.
Virgin Atl. Airways, Ltd., 976 F. Supp. 2d 290, 327
(E.D.N.Y 2013), aff’d, 578 F. App’x 51 (2d Cir. 2014);
Vumbaca v. Terminal One Grp. Ass’n L.P., 859 F. Supp.
2d 343, 365 (E.D.N.Y. 2012); Schaefer-Condulmari
v. U.S. Airways Grp., LLC, 2012 WL 2920375, at *3
(E.D. Pa. Jul. 16, 2012); Katin v. Air France-KLM,
S.A., 2009 WL 1940363, at *3 (E.D. Tex. Jul. 2, 2009);
Booker v. BWIA West Indies Airways Ltd., 2007 WL
1351927, at *4 (E.D.N.Y. May 8, 2007), aff’d, 307 F.
App’x 491 (2d Cir. 2009); Kruger v. United Air Lines,
Inc., 481 F. Supp. 2d 1005, 1009 (N.D. Cal. 2007).8
8
Similarly, Circuit Courts to address the issue have held that
physical manifestations of emotional and mental distress do not
satisfy the “bodily injury” requirement in Article 17. Jacob, 606
F. App’x at 482 (Montreal); Carey v. United Airlines, 255 F.3d
1044, 1052 (9th Cir. 2001) (Warsaw); Terrafranca v. Virgin Atl.
Airways Ltd., 151 F.3d 108, 111 (3d Cir. 1998) (Warsaw).
13
The decision of the Court below rejects the above
precedent and creates a conflict with the Courts of
Appeal for the Eleventh and Fifth Circuits based on
an erroneous interpretation of Article 17(1) that is
also in conflict with the language of Article 17(1) and
the holdings of this Court in Floyd and Zicherman.
I
THE DECISION BELOW CONFLICTS WITH
THE ELEVENTH AND FIFTH CIRCUITS
BECAUSE IT ALLOWS THE RECOVERY OF
MENTAL INJURIES EVEN IF THEY ARE
UNRELATED TO THE BODILY INJURY
The decision of the Court below is wrong and
needlessly creates a conflict with the decisions of the
Courts of Appeal for the Eleventh and the Fifth
Circuits, which have held that recovery for mental
injuries is not allowed under Article 17(1) of the
Montreal Convention unless they were caused by a
bodily injury.
A. The Eleventh Circuit Jacob Decision
In Jacob v. Korean Air Lines Co., 606 F. App’x 478
(11th Cir.), cert. denied, 136 S. Ct. 267 (2015), plaintiff
claimed that he suffered various mental, physical
(swelling of the legs) and physical manifestation of
injuries (aggravation of heart condition and diabetes)
as a result of being denied entry into India due to
improper immigration documents and his subsequent
deportation flights on KAL from India to Hawaii, via
Seoul. The Court of Appeals affirmed the grant of
summary judgment dismissing the case finding that
even assuming that the various incidents plaintiff
described properly constituted “accidents” under the
Montreal Convention, plaintiff failed to provide
14
medical evidence that any of the alleged “accidents”
caused or even contributed to his injuries. 606 F.
App’x at 481.
Citing Floyd, the Court further found that the
claims for mental injuries also were properly
dismissed because the Montreal Convention bars
purely mental injuries (id.), and plaintiff’s attempts to
characterize his physical injuries as manifestations of
mental distress were equally unavailing. The Court
held:
at best, “mental injuries are recoverable under
Article 17 only to the extent that they have been
caused by bodily injuries.” Ehrlich v. Am.
Airlines, Inc., 360 F.3d 366, 400 (2d Cir.2004).
Jacob’s causation, however, is backwards—the
Convention simply does not provide a remedy for
subsequent physical manifestations of an earlier
emotional injury.
Id. at 481-82.
This Court denied Jacob’s Petition for a Writ of
Certiorari which presented, inter alia, the question:
“Must a physical injury be manifested while on board
or in the course of boarding or disembarking an
aircraft or may it occur subsequently as long as it can
be linked to an accident on board or while boarding or
disembarking a flight?” Petition for a Writ of
Certiorari, 2015 WL 4776723 (U.S. Aug. 11, 2015) (No.
15-194); Jacob v. Korean Air Lines Co., 136 S. Ct. 267
(2015).
15
B. The Fifth Circuit Bassam Decision
In Bassam v. Am. Airlines, Inc., 287 F. App’x 309
(5th Cir. 2008), plaintiff sought to recover, in part, for
emotional distress under Article 17(1) of the Montreal
Convention in connection with the loss of items in her
luggage. Id. at 311. The District Court granted
summary judgment dismissing the claim. While the
Court of Appeals deemed the argument regarding the
recoverability of emotional distress waived on appeal
for failure to brief, the Court nevertheless addressed
this claim and held such injuries are not recoverable
under Articles 17(1), 17(2) or 19 of the Montreal
Convention. Id. at 316-17. With respect to the claim
under Article 17(1), the Court held:
As directed by the Montreal Convention, in
looking to existing judicial precedent, courts have
held that emotional injuries are not recoverable
under Article 17 of the Montreal Convention or
Warsaw Convention unless they were caused by
physical injuries. See Ehrlich, 360 F.3d at 369400; Booker v. BWIA West Indies Airways Ltd.,
No. 06-CV-2146, 2007 WL 1351927, at *4
(E.D.N.Y. May 8, 2007); see also E. Airlines, Inc.
v. Floyd, 499 U.S. 530, 552-53, 111 S.Ct. 1489,
113 L.Ed.2d 569 (1991) (holding that a carrier
could not be held liable under Article 17 of the
Warsaw Convention for mental injuries that did
not accompany bodily injuries); Carey v. United
Airlines, 255 F.3d 1044, 1051 (9th Cir.2001)
(holding that emotional and mental distress, even
when accompanied by physical manifestations,
are not recoverable under Article 17 of the
Warsaw Convention). Bassam has not alleged
any physical injury. Moreover, even if her claim
of “embarrassment and upset” could be construed
16
as such, that injury was not caused by an accident
on board the aircraft or in the course of
embarking or disembarking. Therefore, Bassam
has failed to establish carrier liability for
emotional distress damages under Article 17(1).
Id. at 317.
C. The Sixth Circuit Decision Below
The Court below discounted the relevancy of Jacob
and Bassam finding that they either did not conduct
any analysis of the text of the Montreal Convention,
the plaintiff could not establish the “accident”
condition, or involved only emotional injuries and,
therefore, the Courts did not actually adopt the
holding of Ehrlich. A 52a-54a.
Regardless of whether the characterization of these
cases by the Court below is accurate, it is plain that
both Jacob and Bassam first set forth what was the
well-settled rule – emotional injuries are not
recoverable under Article 17 of the Montreal or
Warsaw Convention unless they were caused by
physical injuries – and then applied that rule to the
particular facts presented. Neither Jacob nor Bassam
expressed any reservation regarding this rule.
Bassam cited to other cases in accord with Ehrlich,
and both Courts recognized that “[a]lthough the
Montreal Convention completely replaced the prior
Warsaw Convention, courts interpreting the Montreal
Convention rely on cases interpreting similar
provisions of the Warsaw Convention.” See Bassam,
287 F. App’x at 313, n.5; Jacob, 606 F. App’x at 580,
n.2. The Montreal Convention conditions for liability
in Article 17(1) were left untouched and are identical
to the Warsaw Convention (“accident,” “bodily injury”
17
and on board
disembarking).
the
aircraft
or
embarking/
Thus, there was no need for the Courts to re-analyze
an issue they clearly deemed already decided under
the Warsaw Convention, especially in light of the
clear and repeated directives of the drafters and the
United States that courts should look to existing
Warsaw Convention precedent in interpreting similar
provisions of the Montreal Convention “in order to
avoid unnecessary litigation over issues already
decided by the courts under the Warsaw Convention.”
S. Exec. Rep. No. 108-8, at 3 (2003).
As matters now stand, in the Eleventh and Fifth
Circuits, Article 17(1) of the Montreal Convention
allows recovery for mental injuries only if caused by a
bodily injury. But, in the Sixth Circuit, recovery for
mental injuries is allowed “regardless of whether they
are caused directly by the bodily injury.” The conflict
is clear, the conflict is direct and the conflict is
irreconcilable.
Certiorari should be granted to resolve this conflict
and the question left open by Floyd. Providing
guidance to the lower courts at this time as to under
what circumstances mental injuries are allowed by
Article 17(1) also furthers the Convention goals of
speedy claim resolution and the uniformity the
drafters sought to achieve by retaining “existing
language and substance” of various provisions
(including Article 17). See S. Exec. Rep. No. 108-8,
at 3 (2003).
18
II
THE DECISION BELOW CONFLICTS WITH
THE COURT’S DECISIONS IN FLOYD AND
ZICHERMAN AND THE PLAIN TEXT
OF ARTICLE 17(1)
The Montreal Convention unifies and replaces the
Warsaw Convention system of liability. Ehrlich, 360
F.3d at 371, n.4. However, the terms of Article 17(1)
of the Montreal Convention are materially identical to
Warsaw Article 17. As with the Warsaw Convention,
Article 17(1) of the Montreal Convention creates
carrier liability “in case of death or bodily injury.”
While the Montreal drafters specifically considered
extending a carrier’s liability to include “mental
injuries,” this proposal was rejected and the term
“bodily injury” was retained. Ehrlich, 360 F.3d at 394.
Thus, recovery for “mental injuries” must be premised
upon a finding that it is included within the term
“bodily injury.”
As set forth in Floyd, the threshold Convention
issue is not if mental injuries are recoverable as
“damage sustained,” but whether the term “bodily
injury” allows recovery for mental injuries when they
are not related to or do not flow from the bodily injury.
The decision of the Court below conflicts with the
language of Article 17(1), as well as with
interpretation of the Convention mandated by Floyd
and Zicherman.
19
A. The Decision Below Allowing Recovery of
Mental Injuries as “Damages Sustained”
Conflicts with Floyd and Zicherman
While the Court below recognized the continued
applicability of the Court’s Warsaw Convention
decisions in interpreting the Montreal Convention (A
42a), it then ignored the textual analysis required by
Floyd and misapplied Zicherman in finding mental
injuries are allowed by Article 17(1) as “damage
sustained” without analyzing the meaning of the term
“bodily injury.”
Floyd, 499 U.S. 530, addressed “whether ‘lésion
corporelle’ indeed meant (as it had been translated)
‘bodily injury’ ” and found that it had been properly
translated as “bodily injury,”9 a narrow meaning
excluding purely mental injuries. Id. at 536-42;
Zicherman, 516 U.S. at 221-23. The Court then
confirmed this conclusion as consistent with the
drafting history, the Convention’s purpose and the
post-1929 conduct and interpretation of the
signatories. Floyd, 499 U.S. at 543-47.
While Floyd did not reach the question of whether
passengers can recover for mental injuries that are
accompanied by physical injuries, mental injuries that
are unrelated to physical injury are no different from
the pure mental injury claims proscribed by Floyd. See
Ehrlich, 390 F.3d at 386-87; Longo, 1996 WL 866124,
at *2. As aptly noted by the courts in Ehrlich and
9
Unlike the Warsaw Convention where the only authentic text
was in French, the Montreal Convention is equally authentic in
six languages, including French and English. Montreal
Convention, Attestation Clause (A107a-108a). The French
version of Montreal retained the term “lésion corporelle.”
20
Little Rock: “If we determined that a ‘physical injury,
no matter how minor or unrelated,’ could ‘trigger
recovery of any and all post-crash mental injuries,’
that conclusion would violate the ‘spirit of Floyd.’ ”
Ehrlich, 360 F.3d at 386 (quoting Little Rock, 291 F.3d
at 510). “Such a construction would improperly
encourage artful pleading and would therefore
‘scarcely advance the predictability that adherence to
the treaty has achieved worldwide.’ Tsui Yuan Tseng,
525 U.S. at 171, 119 S.Ct. 662 (rejecting an
interpretation of Article 17 that would have
encouraged artful pleading).” Ehrlich, 360 F.3d at
387.
Even more troublesome is the decision of the Court
below to base recovery of mental injuries on the term
“damage sustained,” which was interpreted by the
Court in Zicherman, 516 U.S. 217. In Zicherman, the
Court rejected the argument that the term “damage
sustained” itself defines what damages are “legally
cognizable.” Id. at 222. The Court found that Article
17 permits compensation only for legally “cognizable
harm,” but pursuant to Article 24(2) leaves the
specification of what harm is “legally” cognizable to
the domestic law applicable under the forum’s choiceof-law rules. Id. at 223-25. Thus, “Articles 17 and
24(2) provide nothing more than a pass-through,
authorizing [courts] to apply the law that would
govern in absence of the Warsaw Convention.” Id. at
229.10 See Tseng, 525 U.S. at 170 (“Court in
Zicherman
determined
that
[the]
Warsaw
[Convention] drafters intended to resolve whether
there is liability, but to leave to domestic law (the local
10
Montreal Articles 17(1) and 29 are substantively the same as
corresponding Warsaw Articles 17 and 24.
21
law identified by the forum under its choice-of-law
rules or approaches) determination of the
compensatory damages available to the suitor.”)
(emphasis in original).
Whether Doe suffered the type of injury for which
Article 17(1) creates liability depends on the meaning
of “bodily injury,” not “damage sustained.” In finding
that recovery for mental injury is “damage sustained”
without addressing the threshold issue of “bodily
injury,” the Court below adopted an incorrect
interpretation of the Convention that is contrary to
the language of Article 17(1) and conflicts with Floyd
and Zicherman.
Certiorari should be granted to ensure the proper
interpretation of the Convention as directed by the
Court and required by the plain language of the
Convention.
B. The Decision Below Creates a New
Causation Requirement Not Supported
by the Text of Article 17(1)
The Court below improperly read into Article 17(1)
the requirement that mental injuries (which it defined
as “damage sustained”) unconnected to the “bodily
injury” are allowed if they “result from” or are
“traceable” to the accident. A 24a, 58a. This causative
requirement between “damages sustained” and
“accident” is neither found in, nor supported by, the
language of Article 17(1).11
11 The Court below noted that it “is still not entirely clear as to
what connection must exist between the required bodily injury
and claimed mental anguish.” A 25a-26a. The Court found
ambiguity as to whether the Convention requires “a single
22
To find, as the Court below did, that free standing
emotional injuries are recoverable as “damage
sustained” if they “result from” or are “traceable” to
the “accident” would improperly amend Article 17(1)
to read:
The carrier is liable for damages sustained
[including mental injuries if they result
from or are traceable to the accident] in case
of death or bodily injury of a passenger upon
condition only that the accident which caused the
death or injury took place on board the aircraft or
in the course of any of the operations of
embarking or disembarking.
As the Court below recognized, “ ‘to alter, amend, or
add to any treaty, by inserting any clause, whether
small or great, important or trivial, [is] an usurpation
of power, and not an exercise of judicial functions.’ ” A
22a (quoting The Amiable Isabella, 19 U.S. (6 Wheat.)
1 (1821). Yet, this is exactly what was done by the
Court below and certiorari should be granted to
ensure this error of treaty interpretation is not
perpetuated by other courts.
accident [to] cause both the required bodily injury and the
claimed mental anguish in order for the mental anguish to be
‘sustained in case of the bodily injury.’ ” A 26a. Nevertheless, the
Court held that only “when a single ‘accident’ causes both bodily
injury and mental anguish, the mental anguish is sustained ‘in
case of’ bodily injury.” Id.
23
III
THE QUESTION PRESENTED IS IMPORTANT
AS THE COURT BELOW REJECTED THE
WELL-SETTLED CONVENTION RULE
REQUIRING A CAUSAL CONNECTION
BETWEEN THE BODILY AND MENTAL
INJURY DESPITE THE EXPRESS INTENT
OF THE DRAFTERS TO PRESERVE
WARSAW PRECEDENT
The proper interpretation of Article 17(1) and the
circumstances when mental injury is recoverable is of
particular importance.
While the issue presented here was left opened by
the Court in Floyd, this had not caused any significant
difficulty for more than 25 years as the lower courts
have adopted an interpretation of Article 17, which
allows the recovery of mental injuries only if they flow
from the bodily injury. Such an interpretation is in
accord with Floyd, allows the recovery for mental
injury consistent with the Convention’s use of the
term “bodily injury,” and preserves Warsaw precedent
while allowing for “an equitable balance of interests”
among passengers and air carriers as intended by the
Montreal drafters. Indeed, it is in accord with the
decisions of other Convention signatories. See infra, at
27-28. Thus, until now, it had not been necessary for
the Court to address this issue.
The decision of the Court below has upset this
balance by following the path set by Roselawn, which
has been rejected by the courts.
The issue of the recoverability of mental injuries
was considered by the Montreal drafters. After
considerable debate, the drafters ultimately decided
24
to not make reference to mental injuries and to retain
“bodily injury.” See Ehrlich, 369 F.3d at 391-400
(summarizing delegate’s comments); Brief for the
United States as Amicus Curiae, 2003 WL 23497831,
at *5-12 (2d Cir. Aug. 18, 2003) (No. 02-9462)
(summarizing delegate’s comments).
In fact, the drafters opted to retain many of the
original provisions and terms of the Warsaw
Convention in order to preserve established law
interpreting the Warsaw Convention specifically to
avoid unnecessary litigation. The U.S. Senate Report
submitted with respect to the ratification of the
Montreal Convention states:
Continuity
Precedents
of
Applicable
*
*
Warsaw
*
In the nearly seventy years that the Warsaw
Convention has been in effect, a large body of
judicial precedent has been established in the
United States. The negotiators of the Montreal
Convention intended to preserve these
precedents. According to the Executive Branch
testimony, ‘‘[w]hile the Montreal Convention
provides essential improvements upon the
Warsaw Convention and its related protocols,
efforts were made in the negotiations and
drafting to retain existing language and
substance of other provisions to preserve judicial
precedent relating to other aspects of the Warsaw
Convention, in order to avoid unnecessary
litigation over issues already decided by the
courts under the Warsaw Convention and its
related protocols.’’ (Response to questions for the
record submitted by Chairman Lugar, page 68).
25
S. Exec. Rep. No. 108-8, at 3 (2003). See also Letter of
Submittal, S. Treaty Doc. No. 106-45, 1999 WL
33292734, at *7 (2000) (“At the International
Conference on Air Law at which the Convention was
adopted, delegates considered making express
reference to recovery for mental injury, but instead
resolved to leave untouched legal precedents
developed under the language of the Warsaw
Convention, acknowledging that such precedents
currently allow the recovery of mental injury in
certain situations and that the law in this area will
continue to develop in the future.”).
At the time of the Montreal Conference (May 1999),
Floyd had been decided and most district courts that
had considered the issue, as well as the New York
Court of Appeals, had allowed recovery for mental
injuries only to the extent that they were caused by
physical injuries. Ehrlich, 360 F.3d at 399 (citing
cases).
The Court below dismissed the relevance of Warsaw
Convention precedent, finding the goals of the two
Conventions differed. A 36a-37a. A primary goal of
both Conventions was uniformity and predictability
with respect to liability and claims, but unlike
Warsaw, the Montreal Convention eliminated the
monetary limits of liability for passenger death and
injury. Montreal Convention, Preamble (A 76a);
Ehrlich, 360 F.3d at 371 n. 4.12 Nevertheless, the
12 The Montreal Convention recognizes the importance of
ensuring protection of the interests of consumers in international
carriage by air and the need for equitable compensation. Id. at
371, n.4. To achieve this, the Convention established virtual
strict liability for passenger death and injury claims up to
100,000 SDRs, presumptive liability without limit above that
26
Montreal Convention also sought to achieve “an
equitable balance of interests” among passengers and
air carriers. Montreal Convention, Preamble (A75a76a). The decision below is inapposite to the
Convention’s goal of uniformity, predictability and
speedy claim resolution as it will only lead to
“unnecessary litigation over issues already decided by
the courts under the Warsaw Convention” years ago.
The rule created by the Court below expands the
liability of carriers beyond what was accepted at
Montreal and will give rise to anomalous and illogical
consequences. Ehrlich explained:
“similarly situated passengers [would be] treated
differently from one another on the basis of an
arbitrary and insignificant difference in their
experience.” Id. For example, a passenger who
sustained a mental injury but no bodily injury
would be unable to look to Article 17 for relief
whereas a co-passenger who suffered the same
mental injury yet fortuitously pinched his little
finger in his tray table while evacuating and
thereby suffered an unrelated bodily injury would
be able to hold the carrier liable under the
Warsaw Convention.
Ehrlich, 360 F.3d at 385-86 (quoting Alvarez, 1999
WL 691922, at *5); Longo, 1996 WL 866124, at *2.
The decision of the Court below now necessitates a
definitive answer to the open Floyd question.
Certiorari should be granted to restore the proper
amount and an additional jurisdiction in which suits could be
filed. Montreal Convention, Articles. 17(1), 21 and 33(2). These
changes were intended to expedite passenger settlement.
27
balance that existed before the decision of the Court
below and to ensure that the lower courts follow the
clear direction of the drafters when interpreting the
Montreal Convention.
IV
THE DECISION BELOW CONFLICTS WITH
THE DECISIONS OF OTHER STATE PARTIES
TO THE MONTREAL CONVENTION
When interpreting treaty provisions, the Court
affords “considerable weight” to the opinions of sister
signatories. Saks, 470 U.S. at 404. The court decisions
of the other signatories to the Warsaw and Montreal
Conventions are in accord with and often cite
approvingly to U.S. court decisions, including Ehrlich,
that require the mental injuries to be caused by or
flow from a bodily injury:
In American Airlines v. Georgeopoulos (No 2),
[1998] N.S.W.C.A. 273 (Australia), Court of
Appeal rejected an argument principally
based on Roselawn that a carrier would be
liable under Article 17 of the Warsaw
Convention for mental injuries that were not
a result of death or bodily injury.
In King v. Bristow Helicopters Ltd., [2002]
UKHL 7, [2002] 2 A.C. 628 (U.K.), the
opinions expressed by certain Law Lords in
the House of Lords noted that recoverable
damages under Article 17 of the Warsaw
Convention must be caused by a bodily
injury.
In Plourde v. Service Service aérien F.B.O.
inc. (Skyservice), 2007 QCCA 739 (Canada),
the Quebec Court of Appeal cited Ehrlich
28
favorably as “illuminating the issue of
compensation for psychological harm” under
the Warsaw Convention and held that “the
Montreal Convention did not modify the air
carrier liability regime in the event of
psychological harm” and that “the question of
compensation for psychological harm was
specifically addressed at the [Montreal]
Conference and clearly rejected.”
In Wettlaufer v. Air Transat A.T. Inc., 2013
BCSC 1245 (Canada), the British Columbia
Supreme Court (a court of first instance)
applied Ehrlich to find that a plaintiff could
not recover for a fear of flying under Article
17(1) of the Montreal Convention because
there was “not a sufficient causal link”
between the fear and the alleged bodily
injury.
In Pel-Air Aviation Pty Ltd v. Casey, [2017]
NSWCA 32 (Australia), the Court of Appeal
denied recovery for mental injury under
Article 17(1) of the Montreal Convention,
despite the presence of bodily injuries,
finding that “[i]mportance must be attached
to the adjective ‘bodily’ as a limiting word. It
clearly draws a distinction between bodily
and mental injuries: mental injuries are
covered only if they are a manifestation of
physical injuries, or if they result from
physical injuries.”
Certiorari should be granted as the decision of the
Court below is inconsistent with those of the other
signatories and, therefore, threatens the Montreal
Convention’s goal of achieving uniformity of the rules
29
governing
carriage.
air
carrier
liability
in
international
CONCLUSION
Based upon the foregoing reasons, the Petition for a
Writ of Certiorari should be granted.
Dated: January 4, 2018
Respectfully submitted,
Andrew J. Harakas
Counsel of Record
CLYDE & CO US LLP
Attorneys for Petitioner
The Chrysler Building
405 Lexington Avenue, 16th Floor
New York, New York 10174
(212) 710-3900
Of Counsel:
Daniel E. Correll
Philip R. Weissman
APPENDIX
1a
Order Denying Petition for Rehearing en banc
from the United States Court of Appeals,
Sixth Circuit (October 6, 2017)
FILED
Oct 06, 2017
DEBORAH S. HUNT, Clerk
No. 16-1042
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ORDER
———————————————————
JANE DOE; JOHN DOE, HUSBAND AND WIFE,
Plaintiffs-Appellants,
v.
ETIHAD AIRWAYS, P.J.S.C.,
Defendant-Appellee.
———————————————————
BEFORE: BOGGS, SUHRHEINRICH,
McKEAGUE, Circuit Judges.
and
The court received a petition for rehearing en banc.
The original panel has reviewed the petition for
rehearing and concludes that the issues raised in the
petition were fully considered upon the original
submission and decision of the case. The petition then
was circulated to the full court. No judge has
requested a vote on the suggestion for rehearing
en banc.
Therefore, the petition is denied.
2a
ENTERED BY ORDER OF THE COURT
/s/ Deborah S. Hunt
Deborah S. Hunt, Clerk
3a
Judgment from the United States Court
of Appeals, Sixth Circuit (August 30, 2017)
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 16-1042
———————————————————
JANE DOE; JOHN DOE, husband and wife,
Plaintiffs - Appellants,
v.
ETIHAD AIRWAYS, P.J.S.C.,
Defendant - Appellee.
———————————————————
Before:
BOGGS,
SUHRHEINRICH,
McKEAGUE, Circuit Judges.
and
JUDGMENT
On Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
THIS CAUSE was heard on the record from the
district court and was argued by counsel.
IN CONSIDERATION THEREOF, it is ORDERED
that the district court’s partial-summary-judgment
order is REVERSED, and the case is REMANDED for
further proceedings consistent with the opinion of this
court.
ENTERED BY ORDER OF THE COURT
/s/ Deborah S. Hunt
Deborah S. Hunt, Clerk
5a
Opinion Reversing the District Court’s PartialSummary Judgment Order and Remanding
this Matter for Further Proceedings from the
United States Court of Appeals, Sixth Circuit
(August 30, 2017)
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 16-1042
———————————————————
JANE DOE; JOHN DOE, husband and wife,
Plaintiffs-Appellants,
v.
ETIHAD AIRWAYS, P.J.S.C.,
Defendant-Appellee.
———————————————————
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 5:13-cv-14358—John Corbett O’Meara,
District Judge.
Argued: October 19, 2016
Decided and Filed: August 30, 2017
Before:
BOGGS,
SUHRHEINRICH,
McKEAGUE, Circuit Judges.
———————————————————
and
6a
COUNSEL
ARGUED: Mark Kelley Schwartz, DRIGGERS,
SCHULTZ & HERBST, P.C., Troy, Michigan, for
Appellants. Andrew J. Harakas, CLYDE & CO US
LLP, New York, New York, for Appellee. ON BRIEF:
Mark Kelley Schwartz, DRIGGERS, SCHULTZ &
HERBST, P.C., Troy, Michigan, for Appellants.
Andrew J. Harakas, Daniel E. Correll, CLYDE & CO
US LLP, New York, New York, Scott R. Torpey,
JAFFE RAITT HEUER & WEISS, Southfield,
Michigan, for Appellee.
———————————————————
OPINION
———————————————————
BOGGS, Circuit Judge. Plaintiff Jane Doe and her
eleven-year-old daughter flew aboard Etihad Airways
from Abu Dhabi to Chicago. For the duration of the
fourteen-hour journey, Doe’s tray table remained open
in her lap because a knob that was meant to hold it in
place had fallen to the floor. During the flight, Doe’s
daughter found the knob on the floor and gave it to
Doe, who placed it in a seatback pocket. When it came
time to descend, an Etihad flight attendant (unaware
of the detached knob) gave Doe the familiar reminder
to place her tray table in the upright and locked
position for landing. Doe, of course, could not comply.
To aid in explaining her problem, she reached into the
seatback pocket to retrieve the fallen knob. But when
she stuck her hand into the pocket, she was
unexpectedly pricked by a hypodermic needle that lay
hidden within. She gasped, and the needle drew blood
from her finger.
7a
Doe claims damages from Etihad for both her
physical injury and her “mental distress, shock,
mortification, sickness and illness, outrage and
embarrassment from natural sequela of possible
exposure to” various diseases. Her husband claims
loss of consortium. The Montreal Convention of 1999,
an international treaty under which these claims
arise, imposes strict liability (up to a monetary cap)
upon Etihad “for damage sustained in case of death or
bodily injury of a passenger upon condition only that
the accident which caused the death or injury took
place on board the aircraft.” Etihad concedes that an
accident onboard its aircraft caused Doe to suffer a
bodily injury. But Etihad argues that “damage
sustained in case of . . . bodily injury” means only
“damage caused by bodily injury,” and thus does not
include Doe’s fear of contagion and other emotionaldistress and mental-anguish damages—damages that
Etihad claims were caused not by Doe’s bodily injury
(the small hole in her finger) but by the nature of the
instrumentality of that injury (the needle). The
district court agreed and granted partial summary
judgment for Etihad. But the district court erred both
in reading the additional “caused by” requirement
into the treaty and in concluding that Doe’s bodily
injury didn’t cause her emotional and mental injuries.
The plain text of the Montreal Convention allows Doe
to recover all her “damage sustained” from the
incident, which includes damages for both physical
injury and accompanying emotional or mental harm.
So, for the reasons that follow, we reverse and
remand.
8a
I
When Doe was pricked by the needle, the passenger
seated in the aisle seat to her right heard Doe exclaim,
“ouch,” and saw her finger bleeding. The Etihad flight
attendant who had come to Doe’s seat picked up the
needle and what was later determined to be its
accompanying insulin syringe, both of which Doe had
placed on her tray table. But the flight attendant then
returned the items to the tray table and left to
summon the assistance of her supervisor. Because the
airplane had begun its descent, the flight attendants
did not have access to the flight deck, which was
where the only onboard sharps box was located, nor
were the flight attendants permitted to call the flight
deck absent a more pressing emergency.
The flight attendant returned with her supervisor.
The flight attendant took the needle and syringe,
placed them in an empty water bottle, capped the
bottle, and later turned the bottle over to her cabin
manager. The supervisor, meanwhile, gave Doe an
antiseptic wipe, which Doe used to wipe her finger,
and a Band-Aid, which the supervisor himself
wrapped around her finger. The cabin manager wrote
a report of the incident and told Doe that Etihad
would contact her. A flight attendant recommended
that Doe see a doctor, but Etihad provided no medical
assistance other than the antiseptic wipe and BandAid.
The next day, Doe saw a family physician, who
noted a “small needle poke” on Doe’s finger. Doe was
prescribed medication for possible exposure to
hepatitis, tetanus, and HIV, and she underwent
several rounds of testing over the following year.
Thankfully for Doe, all the tests came back negative.
9a
Nevertheless, Doe claims that she refrained from
sexual intercourse with her husband and from
sharing food with her daughter until one year after
the incident, when her doctor told her that she could
be certain that she had not contracted a disease from
the needlestick.
Two days after the flight, Doe sent an email to
Etihad to follow up because Etihad had neither sent
her a copy of the incident report nor offered her any
further assistance. One week later, Etihad replied by
email to offer a “purely goodwill gesture” of “possible
reimbursement” of Doe’s medical expenses, “without
any admission of liability.” This litigation followed.
II
Plaintiffs filed suit against Etihad in the United
States District Court for the Eastern District of
Michigan.1 Etihad, an entity wholly owned by the
Government of Abu Dhabi, United Arab Emirates, is
a “foreign state” within the meaning of the Foreign
Sovereign Immunities Act, 28 U.S.C. § 1603(a). But as
a condition of Etihad’s Foreign Air Carrier Permit—
issued by the United States Department of
Transportation to permit Etihad to fly to United
States airports— Etihad waived sovereign immunity
from suit in United States courts and could thus be
sued “in any judicial district in which [Etihad] is
At first blush, the Eastern District of Michigan seems an
unlikely venue for this action. Plaintiffs reside in Grand Rapids,
in the Western District of Michigan, and no part of Plaintiffs’
itinerary included travel to points in the Eastern District of
Michigan. But Plaintiffs’ counsel is based in Oakland County,
Michigan (in the Eastern District), and, as we discuss in this
paragraph, venue was proper in the Eastern District of Michigan
because of Etihad’s status as a “foreign state.”
1
10a
licensed to do business or is doing business,” which
includes the Eastern District of Michigan because of
Etihad’s codeshare and other business agreements
with airlines operating from points within that
district. 28 U.S.C. § 1391(f); see 49 U.S.C. § 41301.2
Following discovery, Etihad moved for, and the
district court granted, partial summary judgment in
favor of Etihad as to Doe’s claims for mental-anguish
and emotional-distress damages, including fear of
contagion. (For simplicity, we will refer to these
various claims collectively as Doe’s claims for mental
anguish.3) The partial-summary-judgment order also
dismissed Doe’s husband’s derivative claim for loss of
consortium. Doe declined to pursue a lost-earnings
claim that she had pleaded in her complaint, leaving
only her claim for the physical pain, suffering, and
medical expenses caused by the needlestick, which the
parties stipulated to be de minimis relative to the
dismissed claims. (These de minimis damages include
the physical pain and suffering from being pricked by
the needle: the small hole in Doe’s finger and the
“ouch,” so to speak. But they do not include any
mental anguish arising from the fact that it was a
stray needle and not, for example, a sterilized
toothpick, that pricked Doe’s finger. The logic behind
2 Etihad’s status as a foreign state also entitles it by statute to a
bench trial rather than a jury trial. See 28 U.S.C. § 1441(d).
Mental anguish and emotional distress are distinct harms
under Michigan damages laws. See, e.g., McClain v. Univ. of
Mich. Bd. of Regents, 665 N.W.2d 484, 488 (Mich. App. 2003) (per
curiam). But this distinction does not affect the determination of
whether Etihad may be subject to liability for such harms under
the Montreal Convention; the distinction matters, if at all, only
in our discussion of the measure of damages in Section IV, infra.
3
11a
this distinction is that if something like a sterilized
toothpick had caused Doe’s bodily injury, then Doe
would not have had any reasonable fear of contagion,
so Doe’s fear of contagion must arise from the fact that
it was a needle that caused her injury, rather than
arising from the injury itself, and Doe’s fear of
contagion is therefore not recoverable as “damage
sustained in case of bodily injury” under the Montreal
Convention. This logic is faulty, of course, because
Doe’s injury was an injury caused by a needle and was
not the same as the injury that a sterilized toothpick
would have caused, even if arguably similar. We will
discuss this more fully in Section III.A, infra.) The
parties reached a settlement as to these de minimis
damages, and the parties agreed to a “Stipulation and
Order of Dismissal with Prejudice,” so that Plaintiffs
could immediately appeal the district court’s partialsummary-judgment order.
We first discuss, in Section III, whether the district
court erred in holding that Doe’s mental-anguish
damages were not recoverable under Article 17(1) of
the Montreal Convention, and—after analyzing both
the plain text of the treaty and relevant persuasive
authorities—we conclude that the district court did so
err. Then, in Section IV, because the Montreal
Convention provides rules for liability but looks to
local law for the measure of damages, we conduct a
choice-of-law analysis and hold that Michigan
damages law governs both the amount of any damages
Etihad comes to owe Doe and the ability of Doe’s
husband to recover loss-of consortium damages.
12a
III
The parties agree that Article 17(1) of the Montreal
Convention, a multilateral treaty to which the United
States is a signatory, provides Plaintiffs’ only avenue
for recovery against Etihad. See Convention for the
Unification of Certain Rules for International
Carriage by Air, art. 17, May 28, 1999, S. Treaty Doc.
106-45, ICAO Doc. No. 9740, 1999 WL 33292734
(entered into force Nov. 4, 2003) (Montreal
Convention). More than 125 countries, including the
United Arab Emirates, have signed, ratified, or
acceded to the Montreal Convention since 1999.
The interpretation of a treaty is a question of law
that we review de novo. United States v. Page, 232
F.3d 536, 540 (6th Cir. 2000). Under the Supremacy
Clause, treaties are “the supreme Law of the Land.”
U.S. Const. art. VI, cl. 2. Neither our court nor the
Supreme Court has yet interpreted any provision of
the Montreal Convention. The Warsaw Convention
(the Montreal Convention’s longstanding predecessor
treaty), however, has been the subject of much
litigation over the past eighty years, and
interpretations of the Warsaw Convention have at
least some persuasive value in interpreting parallel
provisions of the Montreal Convention.4 See
Convention for the Unification of Certain Rules
4 The Warsaw Convention continues to govern disputes involving
parties from countries that are signatories to the Warsaw
Convention but not signatories to the Montreal Convention.
Russia, for example, is a party to the Warsaw Convention and
did not ratify the Montreal Convention until 2017, so the Warsaw
Convention would govern claims against Russian airlines arising
from incidents that occurred prior to Russia’s ratification of the
Montreal Convention.
13a
Relating to International Transportation by Air, Oct.
12, 1929, 49 Stat. 3000, T.S. 876, 137 L.N.T.S. 11
(Warsaw Convention); In re Air Crash at Lexington,
Ky., 501 F. Supp. 2d 902, 907–08 (E.D. Ky. 2007)
(noting that “the ‘common law’ of the Warsaw
jurisprudence is vitally important to understanding
the meaning of the Montreal Convention”) (quoting
Baah v. Virgin Atl. Airways, 473 F. Supp. 2d 591, 596
n.7 (S.D.N.Y. 2007)); see also, e.g., Zicherman v.
Korean Air Lines Co., 516 U.S. 217 (1996)
(interpreting Warsaw Convention Article 17), Eastern
Airlines, Inc. v. Floyd, 499 U.S. 530 (1991) (same), Air
France v. Saks, 470 U.S. 392 (1985) (same). As with
the Montreal Convention, the Warsaw Convention
provided international air passengers’ exclusive
remedy for claims governed by that treaty. See, e.g.,
El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S.
155, 168–69 (1999) (holding that the Warsaw
Convention provided the sole remedy for personalinjury claims arising from injuries sustained during
international air travel, even if the injured party could
not state a claim for relief under the Warsaw
Convention, in which case no remedy was available at
all).
A. Textual Analysis
Our analysis of Article 17(1) of the Montreal
Convention “must begin . . . with the text of the treaty
and the context in which [its] written words are used.”
Saks, 470 U.S. at 397 (citing Maximov v. United
States, 373 U.S. 49, 53–54 (1963)). The text of Article
17(1) provides:
The carrier is liable for damage sustained in case
of death or bodily injury of a passenger upon
condition only that the accident which caused the
14a
death or injury took place on board the aircraft or
in the course of any of the operations of
embarking or disembarking.
Montreal Convention art. 17(1).
1.
Etihad’s Argument
The contested language here is “in case of.” Etihad’s
argument has two components: its understanding of
what “in case of” means, and its application of that
understanding to the facts of this case.
First, Etihad argues that “in case of” means “caused
by,” Appellee’s Br. 4, or perhaps “caused directly by,”
see id. at 21. If we impose Etihad’s reading of Article
17(1) back onto the text of the treaty, Etihad is then
“liable for damage sustained [caused directly by]
death or bodily injury of a passenger upon condition
only that the accident which caused the death or
injury took place on board the aircraft . . . .” Thus,
according to Etihad, in order for Doe to recover for her
mental anguish under Article 17(1), Doe would have
to prove that (1) an “accident” caused her “bodily
injury” on board an aircraft and (2) her “bodily injury”
(i.e. the small hole in her finger) directly caused her
“damage sustained” (i.e., her mental anguish).
Second, Etihad concedes that an accident caused
Doe to suffer a bodily injury on board its aircraft, but
Etihad argues that Doe’s bodily injury did not directly
cause her mental anguish: according to Etihad, Doe’s
anguish was caused not by her “bodily injury” (i.e., the
needlestick,5 the physical puncture wound) but rather
5 The Oxford English Dictionary defines “needlestick” as “an
accidental stab wound produced by a hypodermic or surgical
needle, esp. as a risk factor for the transmission of blood-borne
15a
by the “accident” that caused the injury (i.e., being
stuck by a needle, as opposed to being stuck by
something else). Order Granting Def.’s Mot. for
Partial Summ. J. 4 (emphasis added) (citations
omitted) (“Plaintiff’s mental distress damages were
not caused by her physical injury. It is not the physical
needle prick itself that caused Plaintiff’s distress, but
the possibility that she may have been exposed to an
infectious disease.”); see Appellee’s Br. 17 (“[Doe’s]
mental anguish damages arise from the nature of the
accident itself and were not caused by the bodily
injury”), id. at 20 (“because the plaintiffs’ mental
injuries were caused by the ‘accident’ itself and not the
‘bodily injuries’ sustained in the accident, there could
be no recovery under the Convention”).
A simple diagram helps to illustrate Etihad’s
curious understanding:
diseases to health-care workers.” Needle, Oxford English
Dictionary, http://www.oed.com/view/Entry/125771 (last visited
Aug. 29, 2017).
16a
As this diagram indicates, according to Etihad,
mental anguish caused directly by the bodily injury is
recoverable, but mental anguish that merely
accompanies the bodily injury, and which is instead
caused more generally by the accident, is not
recoverable.
2.
Plain Meaning of the Text
But “in case of” does not mean “caused by.”
Rather, the plain meaning of “in case of” is “if there
is” or “in the event of” or “during a case in which there
is.” The Oxford English Dictionary, for example,
defines “in case” (as a conjunction) as, “In the event
that; if it should happen that; if,” and defines “in case
of” (as an adverb) as “in the event of (esp. something
untoward). Now frequently in in case of emergency.”
In case, Oxford English Dictionary, http://
www.oed.com/view/Entry/426263 (last visited Aug. 29,
2017). The Canadian Oxford Dictionary has similar
definitions and is a seemingly apt dictionary for
identifying the contemporaneous meaning of terms in
the Montreal Convention, given that the dictionary
was first published in 1998 and then updated in 2004,
while the treaty was signed in 1999 (in Canada) and
entered into force in 2003. See Case, The Canadian
Oxford Dictionary (2d ed. 2004), http://www.
oxfordreference.com/view/10.1093/acref/97801954181
63.001.0001/m_en_ca001103 0?rskey=8fa6U0&result
=11001 (defining “in case” as “in the event that; if,”
and defining “in case of” as “in the event of”).
Clearly, the plain meaning of “in case of” is
conditional, not causal. To say in case of X, do Y is to
say “if X happens, then do Y”—none of which means
that there is a causal relationship between X and Y—
just as to say in case of a compensable bodily injury,
17a
the passenger may recover damage sustained is to say
“if there is a compensable bodily injury, the passenger
may recover damage sustained.” But to adopt Etihad’s
meaning of “in case of,” we would impose an additional
causal restriction onto the text of Article 17(1) that the
plain text does not contemplate. Indeed, imposing
such an additional causal restriction would contradict
the plain text, which states that “[t]he carrier is liable
for damage sustained in case of . . . bodily injury . . .
upon condition only that the accident which caused
the death or bodily injury took place on board the
aircraft or [while] embarking or disembarking.”
Montreal Convention art. 17(1) (emphasis added).
The phrase “upon condition only” is new to the
Montreal Convention—it is not found in the Warsaw
Convention (either in English or in the official French
version)6—and it makes clear that the passenger’s
The official text of Article 17 of the Warsaw Convention
provides in full:
6
Le transporteur est responsable du dommage survenu en
cas de mort, de blessure ou de toute autre lésion corporelle
subie par un voyageur lorsque l’accident qui a causé le
dommage s’est produit à bord de l’aéronef ou au cours de
toutes opérations d’embarquement et de débarquement.
Warsaw Convention art. 17.
Only the French text of the Warsaw Convention is
authoritative, but the United States Supreme Court has
employed as persuasive authority an official English translation
of that text, which was presented to the United States Senate
when it consented to ratify the Warsaw Convention in 1934, and
which provides:
The carrier shall be liable for damage sustained in the
event of the death or wounding of a passenger or any other
bodily injury suffered by a passenger, if the accident which
caused the damage so sustained took place on board the
18a
recovery is conditioned only on the occurrence of an
accident that causes death or bodily injury either on
board the aircraft or during boarding or deplaning.
Surely, the drafters of the Montreal Convention could
have used a word or phrase with causal meaning
instead of “in case of” if they wanted to impose such a
causal restriction on the kinds of “damage sustained”
that are recoverable when an accident on board an
aircraft causes a passenger to incur a bodily injury.
Indeed, the drafters did impose such a causal
requirement in stating that the accident must have
“caused” the death or bodily injury. The drafters’ use
of “caused” to express that an accident must have
caused the bodily injury thus provides additional
support for our conclusion that the drafters did not, in
the very same sentence, use “in case of” also to mean
“caused by.”
aircraft or in the course of any of the operations of
embarking or disembarking.
49 Stat. 3014; see Olympic Airways v. Husain, 540 U.S. 644, 649
n.4 (2004); Saks, 470 U.S. at 397.
For the most part, the language of the Warsaw Convention’s
Article 17 is the same as the language of the Montreal
Convention’s Article 17(1). Notably, the “in case of” language in
the Montreal Convention replaced “en cas de” from the Warsaw
Convention, which was translated from the French in the above
translation as “in the event of.” And, as discussed above, the
“upon condition only” language in the Montreal Convention was
new: it replaced “lorsque” from the Warsaw Convention, which
was translated from the French in the above translation as “if.”
19a
3.
The Underpinnings of Etihad’s Argument
Admittedly, in light of the foregoing discussion,
Etihad’s position—that “in case of” does mean “caused
by”—may seem absurd. But it is not, and that is
because Etihad’s argument is rooted in a Warsaw
Convention decision of the Second Circuit Court of
Appeals in which that court held that American
Airlines was not liable under the Warsaw Convention
“for mental injuries that were not caused by physical
injuries.” Ehrlich v. Am. Airlines, Inc., 360 F.3d 366,
368 (2d Cir. 2004) (emphasis added). Etihad asks us
to adopt the Second Circuit’s Warsaw Convention
decision in Ehrlich to decide the Montreal Convention
case before us. But the Montreal Convention is a new
treaty that we interpret as a matter of first
impression, and there is no legal authority that would
require us to import Ehrlich’s Warsaw Convention
determination to govern this Montreal Convention
claim.
In Ehrlich, an American Eagle7 aircraft overshot its
designated runway upon landing at New York’s JFK
International Airport. An arrestor bed—a bed of
material made of water, foam, and cement that
crushes under the weight of an airplane, increasing
drag and helping bring the airplane to a stop—saved
the plane from plunging into the waters of Thurston
Bay, which lay 200 feet beyond where the plane came
to a halt. To evacuate the aircraft, passengers had to
jump six to eight feet from its doorway. Ibid.
7 American Eagle is a brand name under which various regional
air carriers operate flights on behalf of American Airlines.
20a
Gary and Maryanne Ehrlich were passengers on the
flight. They contended that they suffered bodily
injuries (neck, back, shoulder, hip, and knee injuries;
hypertension; and a heart problem) during the
abnormal landing and subsequent evacuation. They
also alleged mental injuries including a fear of flying,
nightmares, and trouble sleeping. The district court
granted partial summary judgment for the airline
defendant as to the mental injuries on the basis that
“a plaintiff may only recover for emotional damages
caused by physical injuries.” Id. at 369 (quoting
Ehrlich v. Am. Airlines, 99-CV-6013, 2002 U.S. Dist.
LEXIS 21419, at *10 (E.D.N.Y. June 21, 2002)
(emphasis added)). The Second Circuit affirmed,
noting that “the Ehrlichs had offered no evidence
demonstrating a causal connection between their
mental and physical injuries.” Ehrlich, 360 F.3d at
369.8
8 A footnote in Ehrlich clarifies that the sole dispute between the
Ehrlichs and the airline was whether the airline was liable for
mental anguish that only accompanies bodily injury and is not
caused by bodily injury—the Ehrlichs did not argue, as Doe does
here, that their bodily injuries in fact caused their mental
injuries:
For the purposes of this appeal, American Eagle does not
dispute that the Ehrlichs allegedly sustained mental and
bodily injuries which were caused by an accident that took
place on board its aircraft or during the evacuation
therefrom. Moreover, on appeal, the Ehrlichs do not
challenge the district court’s conclusion that they failed to
raise “a genuine issue of fact regarding a causal connection
between their alleged bodily injuries and their mental
suffering.” See Ehrlich, 2002 U.S. Dist. LEXIS 21419, at
*11. Instead, their appeal focuses on whether the court
properly construed Article 17. Accordingly, we need not
address whether an accident caused the Ehrlichs to suffer
21a
Ehrlich reached its conclusion only after grappling
at length with the original French text of the Warsaw
Convention, finding it ambiguous as to whether it
held airlines liable for mental injuries that are not
caused by a compensable bodily injury, and inquiring
into the original purpose of the Warsaw Convention
when it was signed in 1929. Indeed, Ehrlich discussed
the Montreal Convention as well: the Montreal
Convention was signed just weeks after the Ehrlichs’
emergency landing, and the Montreal Convention
entered into force after the Second Circuit heard
injuries on board an aircraft or in the course of any of the
operations of disembarking; we also need not address
whether the Ehrlichs’ alleged physical injuries caused their
alleged mental injuries.
Ehrlich, 360 F.3d at 374 n.8.
It is worth reiterating that in the present case, Doe’s mental
anguish is traceable to her bodily injury, whereas in Ehrlich, it
is easier to comprehend the airline’s argument that the Ehrlichs’
bodily injuries did not cause their mental injuries. There, the
Ehrlichs’ alleged mental injuries of fear of flying and
sleeplessness could have been caused by the emergency landing
(and not by the bodily injuries sustained during the evacuation).
The “accident,” then could be understood as the emergency
landing, which (because it resulted in the evacuation) caused the
bodily injuries sustained in the evacuation, and which separately
caused mental injuries that the Ehrlichs would have sustained
regardless of whether they sustained any bodily injuries at all.
Of course, it is also possible that the Ehrlichs’ mental injuries
caused by the emergency landing were exacerbated by the
evacuation (or indeed, exacerbated by the bodily injuries they
sustained during the evacuation)—but because the Ehrlichs did
not argue that their bodily injuries caused their mental injuries,
the Second Circuit was presented with a record on which it was
easier than it is in our case to view the claimed mental injuries
as being “caused by the accident” rather than “caused by the
bodily injury.”
22a
argument in Ehrlich but before it issued its opinion.
See id. at 372. But Ehrlich expressly rejected the
argument that the Montreal Convention had any
retroactive applicability to the Ehrlichs’ claim, and
the Second Circuit based its decision entirely on its
interpretation of the Warsaw Convention. See id. at
373 (“neither the Montreal Convention nor the
intentions of its drafters govern this appeal”).9
In reaching its conclusion, Ehrlich followed the lead
of Jack v. Trans World Airlines, 854 F. Supp. 654,
663–68 (N.D. Cal. 1994), a district-court decision that
also concluded that “only emotional distress flowing
from the bodily injury is recoverable” under Article 17
of the Warsaw Convention. Id. at 665 (emphasis
added). Jack expressly acknowledged (after rejecting
other possible interpretations of the Warsaw
Convention) that its interpretation “does read a
causal component into the phrase ‘damage sustained
in the event of,’” but nevertheless went ahead with
such an interpretation because that interpretation
was “not prohibited” by the United States Supreme
Court’s Warsaw Convention precedents. Id. at 668.
But “to alter, amend, or add to any treaty, by
inserting any clause, whether small or great,
important or trivial, [is] an usurpation of power, and
not an exercise of judicial functions.” The Amiable
Isabella, 19 U.S. (6 Wheat.) 1, 71 (1821) (holding that
the 1795 U.S.–Spain Treaty for safe passage of ships
9 Moreover, because the Montreal Convention was signed well
before the litigation in Ehrlich began, there is no reason to
suppose that the drafters of or parties to the Montreal
Convention took Ehrlich to be a legal precedent that would aid
signatories in future analysis of the text of Article 17(1) of the
Montreal Convention.
23a
did not protect a Spanish claimant from United States
condemnation of a schooner during the War of 1812
when the requisite passport mandated by the treaty
was not affixed to the vessel). Both Ehrlich and Jack
interpolated a causal component into the Warsaw
Convention that was not required by the text, and
both did so expressly to serve the Warsaw
Convention’s purpose of “limiting the liability of air
carriers in order to foster the growth of the fledgling
commercial aviation industry.” Ehrlich, 360 F.3d at
385 (quoting Floyd, 499 U.S. at 546); see also Jack, 854
F. Supp. at 662, 665 (“such an approach furthers the
pro-airline industry goals of the Warsaw Convention
because it is so restrictive of passengers’ rights”). To
be sure, both Ehrlich and Jack found ambiguity in the
original French text of the Warsaw Convention before
inquiring into the purpose of that treaty and seeking
to give effect to that purpose. But what that should
mean for us is not, as Etihad would have it, that we
should blindly adopt Ehrlich as the law of our circuit
for claims under Article 17(1) of the Montreal
Convention, but rather that we should grapple with
the text of the Montreal Convention itself, and then,
to the extent that we find any ambiguity therein, look
to relevant persuasive authority—which may include
evidence of the purpose of the Montreal Convention,
but almost certainly not the nearly century-old
purpose of the Warsaw Convention—to assist us in
resolving that ambiguity.
Ehrlich recognized that “the Montreal Convention
is an entirely new treaty that unifies and replaces the
system of liability that derives from the Warsaw
Convention.” Ehrlich, 360 F.3d at 371 n.4. So do we.
The Montreal Convention was signed in 1999, in six
languages including English, and we are charged with
interpreting that English text in the first instance
24a
rather than clinging to the Second Circuit’s
purposivist interpretation of a French-language
predecessor treaty signed in 1929. In Sections III.B
through III.E, infra, to fortify our textual analysis of
Article 17(1), we will discuss more fully the relative
purposes of the Warsaw and the Montreal
Conventions, and we will address relevant decisions
of the United States Supreme Court and other courts,
which provide useful context for both Ehrlich and our
decision here. But for now, it suffices to say that
Ehrlich and Jack do not provide insight into meaning
of the plain text of Article 17(1) of the Montreal
Convention.
4.
Our Textual Interpretation
Here, then, is a fairer illustration of what damages
are recoverable under Article 17(1) according to the
plain text of the Montreal Convention:
10 The meaning of “accident” is not disputed here. The United
States Supreme Court has consistently interpreted “accident” in
Article 17 of the Warsaw Convention to mean “an unexpected or
25a
As this diagram makes clear, because an accident
onboard Etihad’s aircraft caused Doe to suffer a bodily
injury (a fact that Etihad concedes), Doe may
therefore recover damages for her mental anguish,
regardless of whether that anguish was caused
directly by her bodily injury or more generally by the
accident that caused the bodily injury. That is
because, either way, Doe’s mental anguish is “damage
sustained in case of”—i.e., “in the event of” a
compensable bodily injury.
What the plain text of Article 17(1) also makes clear
is that a passenger cannot recover damages for mental
anguish if there is no requisite accident or if the
accident does not cause a bodily injury. For example,
if ordinary turbulence causes a passenger to suffer an
anxiety attack, the Montreal Convention would not
allow the passenger to recover damages for the
anxiety attack because ordinary turbulence is not an
“accident.” Likewise, if there is an accident, such as
an emergency landing, and a passenger escapes
physically unscathed but mentally harmed, the
passenger is barred from recovering mental-anguish
damages for want of the required bodily injury. This
understanding is supported by the plain text of Article
17(1) of the Montreal Convention—and it also
happens to have the advantage of being simpler than
Ehrlich’s approach.
Admittedly, however, the text of Article 17(1) is still
not entirely clear as to what connection must exist
between the required bodily injury and claimed
unusual event or happening that is external to the passenger.”
Saks, 470 U.S. at 405; see also Husain, 540 U.S. at 650. We will
discuss Saks and Husain in context in Section III.C.1, infra.
26a
mental anguish. The plain text of Article 17(1) is
sufficient on its own to reject Etihad’s interpretation
of it. And the plain text of Article 17(1) allows our
conclusion that when a single “accident” causes both
bodily injury and mental anguish, that mental
anguish is sustained “in case of” the bodily injury. But
the plain text on its own does not necessarily require
that a single accident cause both the required bodily
injury and the claimed mental anguish in order for
that mental anguish to be “sustained in case of” the
bodily injury, as our conclusion suggests.
What if, for example, there are two accidents: first,
unusually rough turbulence (which causes a
passenger mental anguish but no bodily injury), and
second, an unrelated emergency landing, during
which every passenger sustains at least some bodily
injury. Does the bodily injury sustained in the
emergency landing allow the passenger who had
previously suffered severe emotional distress to
recover for that distress? That is, is mental anguish
from the first accident considered “damage sustained
in case of bodily injury” because it was sustained
during the same flight as the second accident, which
caused bodily injury?
On the one hand, it seems reasonable to read the “in
case of” language as precluding recovery of damages
for mental anguish in the example presented in the
preceding paragraph, and our interpretation of Article
17(1) implicitly supports such a conclusion; but on the
other hand, the text of the treaty does not explicitly
prohibit such recovery. So, both to bolster our
conclusion that mental anguish is “sustained in case
of” a bodily injury when it arises from the same
accident that caused that bodily injury, and to
reinforce the proposition that Ehrlich does not control
27a
this case, we review relevant persuasive authorities
that provide insight into the meaning of Article 17(1)
in the context of its ratification by its signatories. See,
e.g., Saks, 470 U.S. at 396 (“[T]reaties are construed
more liberally than private agreements, and to
ascertain their meaning we may look beyond the
written words to the history of the treaty [and] the
negotiations” that produced the treaty. (alteration in
original) (quoting Choctaw Nation of Indians v.
United States, 318 U.S. 423, 431–32 (1943))). We
therefore turn next to the history of the negotiations
that culminated in the signing of the Montreal
Convention and to evidence of the signatories’ purpose
in ratifying the Montreal Convention.
This historical inquiry is important because the
question before us is important. And the question
before us is important for several reasons. First,
Article 17(1) governs not only claims for needlesticks,
snakebites, and the like, but also claims for injuries
and fatalities sustained in plane crashes. Second,
“uniformity is an important goal of treaty
interpretation,” Sanchez- Llamas v. Oregon, 548 U.S.
331, 383 (2006), so we look to the history of the
Montreal Convention to ensure that the conclusion we
draw today is consistent with how our sister
signatories would understand the text of Article 17(1).
Third, the Warsaw Convention’s analogue to the
question before us was expressly left unanswered by
the United States Supreme Court in Floyd when it
ruled that mental injury standing alone was not
recoverable under the Warsaw Convention because of
the absence of the required death or bodily injury:
We conclude that an air carrier cannot be held
liable under Article 17 when an accident has not
caused a passenger to suffer death, physical
28a
injury, or physical manifestation of injury.
Although Article 17 renders air carriers liable for
“damage sustained in the event of” . . . such
injuries, we express no view as to whether
passengers can recover for mental injuries that
are accompanied by physical injuries. That issue
is not presented here because respondents do not
allege physical injury or physical manifestation of
injury.
Floyd, 499 U.S. at 552–53.
Fourth, although we have expended considerable
effort explaining that the Montreal Convention is a
new treaty that we should interpret independently of
the Warsaw Convention, such that Ehrlich does not
inform our decision here, there is nonetheless
evidence that the drafters of the Montreal Convention
intended Article 17(1) to be construed consistently
with well-settled Warsaw Convention precedents of
the United States Supreme Court. See Explanatory
Note to Montreal Convention, art. 17, S. Treaty Doc.
106-45, 1999 WL 33292734, at *16 (2000).11 These
11 This Explanatory Note, though not controlling, is nevertheless
insightful in that it also indicates that the drafters of Article
17(1) did not aim to limit recovery for mental anguish to what
would have been available under the Warsaw Convention. The
Explanatory Note for Article 17(1) is provided here in full:
Paragraph 1 provides for carrier liability for death or
bodily injury of a passenger caused by an accident on board
the aircraft or in the course of embarking or disembarking.
The carrier’s limited defenses to liability are provided for
elsewhere in the Convention (i.e., Article 21, below). It is
expected that this provision will be construed consistently
with the precedent developed under the Warsaw
Convention and its related instruments.
29a
precedents, as we will discuss, include the United
States Supreme Court’s decision defining “accident”
(in Saks, a decision from 1985 that has gained global
currency). But these precedents do not include
Ehrlich, which was decided well after the Montreal
Convention was signed (and which was not a decision
Following extensive debate, the Conference decided not
to include an express reference to recovery for mental
injury, with the intention that the definition of “bodily
injury” would continue to evolve from judicial precedent
developed under Article 17 of the Warsaw Convention,
which uses that term. See International Conference on Air
Law, Vol I Minutes at p. 201 (Thirteenth Meeting, May 25,
1999, Summary of the Chairman of the Conference). The
Conference adopted the following Statement, recorded in
the Minutes of the Proceedings:
With reference to Article 16 [sic], paragraph 1 of the
Convention, the expression ‘bodily injury’ is included
on the basis of the fact that in some States damages
for mental injuries are recoverable under certain
circumstances, that jurisprudence in this area is
developing and that it is not intended to interfere with
this development, having regard to jurisprudence in
areas other than international carriage by air; ….
International Conference on Air Law, Vol. I Minutes at pp.
242-43 (Plenary, Sixth Meeting, May 27, 1999).
The reference in this statement to “jurisprudence in
areas other than international carriage by air” reflects the
concern of some States that jurisprudence under Article
17(1) of the Convention should not develop in a particular
State beyond the then current jurisprudence of that State.
Rather, that jurisprudence should continue to develop in a
manner consistent with, not ahead of, jurisprudence in
other areas in such States.
Explanatory Note to Montreal Convention, art. 17, S. Treaty Doc.
106-45, 1999 WL 33292734, at *16–17.
30a
of a signatory’s highest court, in any event, see, e.g.,
Husain, 540 U.S. at 655 n.9).
And finally, while Ehrlich was a Warsaw
Convention decision, we recognize that our conclusion
today is directly contrary to Ehrlich’s conclusion as to
a similarly worded provision. The history behind the
Montreal Convention will make clear why the
conclusion we reach today is correct, and why we
cannot use the same lines of reasoning that Ehrlich
and Jack used in reaching their holdings that denied
recovery for mental injuries that accompanied but did
not directly flow from a bodily injury.
B. History and Purpose of the
Montreal Convention
The Warsaw Convention was opened for signature
in 1929, just two years after Charles Lindbergh
famously flew his Spirit of St. Louis solo from New
York to Paris, and eight years before Amelia Earhart
disappeared over the Pacific Ocean. The original
parties to the Warsaw Convention had the “primary
purpose of . . . limiting the liability of air carriers in
order to foster the growth of the fledgling commercial
aviation industry.” Floyd, 499 U.S. at 546 (citing
Trans World Airlines, Inc. v. Franklin Mint Corp., 466
U.S. 243, 256 (1984); Minutes, Second Int’l Conf. on
Private Aeronautical Law, October 4–12, 1929,
Warsaw 37 (R. Horner & D. Legrez trans. 1975)
(“Warsaw Conference Minutes”); and Lowenfeld &
Mendelsohn, The United States and the Warsaw
Convention, 80 Harv. L. Rev. 497, 498–99 (1967)).
The Warsaw Convention itself was the product of
four years of work by a committee of experts that was
appointed in 1925 at an international conference in
Paris at which an early draft protocol was circulated.
31a
That draft protocol included an expansive liability
provision, holding the carrier “liable for accidents,
losses, breakdowns, and delays” without imposing any
requirement of death or bodily injury. Ministère des
Affaires Étrangères, Conférence Internationale de
Droit Privé Aérien (27 Octobre–6 Novembre 1925), 79
(1926), as translated in Floyd, 499 U.S. at 542.
By the time the conference in Warsaw began in
1929, the committee had divided the protocol on
liability into three separate provisions (one for injury
to passengers, one for damage to goods, and one for
losses from delays). This text was then further
developed in Warsaw until the final version of the
Warsaw Convention was agreed upon—with much
narrower language in Article 17 for air carriers’
liability to injured passengers. See Warsaw
Conference Minutes at 205–06; Floyd, 499 U.S. at 543.
Moreover, unlike the Montreal Convention’s strictliability scheme, the Warsaw Convention imposed a
cap on damages at 125,000 gold French francs (at the
time, approximately $8,300) per passenger, which
carriers could reduce to zero upon showing that they
had exercised due care by taking “all necessary
measures to avoid the damage or that it was
impossible” to do so. The cap on damages was lifted
(so as to allow potentially unlimited liability) only if
the carrier’s “willful misconduct” caused the injury or
death. Warsaw Convention arts. 17, 20, 22.
The United States Supreme Court has stated that
“it is reasonable to infer that the Conference adopted
the narrower language [in Article 17] to limit the
types of recoverable injuries.” Floyd, 499 U.S. at 543.
“Whatever may be the current view among
Convention signatories, in 1929 the parties were more
concerned with protecting air carriers and fostering a
32a
new industry rather than providing a full recovery to
injured passengers.” Id. at 546.
The Warsaw Convention entered into force in 1933,
and the United States became a party to it in 1934.
Paul S. Dempsey & Michael Milde, International Air
Carrier Liability: The Montreal Convention of 1999, 13
(McGill Univ. Centre for Research in Air & Space
Law) (2005). The United States subsequently led
various efforts to modernize it and raise its liability
limits. See Montreal Convention, 1999 WL 33292734,
at *3–5 (Letter of Submittal from President Clinton to
United States Senate) (“Letter of Submittal”)
(detailing history of Warsaw Convention and
proposed modifications). In the early 1950s, the newly
created International Civil Aviation Organization
(ICAO) began evaluating a potential increase to the
liability limits at international conferences in Rio de
Janeiro and The Hague. At The Hague, the United
States proposed raising the personal-liability limits to
approximately $25,000, but the majority of other
participants resisted; the United States countered
with a reduced proposal of approximately $20,000,
which was also met with disapproval. “It was not until
the United States began to threaten denunciation”
that any agreement to increase the personal-liability
limits was reached, and even then, the United States
“succeeded only in doubling the original Warsaw
Convention liability limit to $16,600,” in a proposed
amendment to the Warsaw Convention known as the
Hague Protocol. Dempsey & Milde, supra, at 19 n.51;
Letter of Submittal, 1999 WL 33292734, at *3; see
Protocol to Amend the Convention for the Unification
of Certain Rules Relating to International Carriage by
Air, done at The Hague September 28, 1955. The
33a
United States, dissatisfied with the low liability
limits, refused to ratify the Hague Protocol.12
In 1965, in response to what some courts have
described as the “unconscionably low” liability limits
under the Warsaw Convention, Dunn v. Trans World
Airlines, Inc., 589 F.2d 408, 411 (9th Cir. 1978),
United States Secretary of State Dean Rusk gave
Poland six months’ notice that the United States
intended to denounce the Warsaw Convention.
Dempsey & Milde, supra, at 29 n.87 (citing Dep’t of
State Press Release No. 268, 50 Dep’t of State Bull.
923–24 (1965)). The notice included a proviso that the
United States would retract its notice of denunciation
if personal-liability limits were raised to $75,000 to
$100,000 per passenger.
As a result of this notice, the ICAO held a
conference in Montreal in 1966 at which the United
States unsuccessfully sought to increase the personalliability limits. The airlines themselves, however—
including all major air carriers that served the United
States—entered into a private intercarrier agreement
(the Montreal Agreement) that made two broad
changes to the Warsaw Convention’s limitations.
First, the Montreal Agreement increased the
personal-liability limit to $75,000 per passenger.
Second, the Montreal Agreement imposed strict
liability up to the $75,000 limit (while retaining the
preexisting provision that allowed liability beyond
that limit upon a showing of willful misconduct by the
airline). CAB Order E-23680 (May 13, 1966), 31 Fed.
12 In 2003, for reasons not germane to this opinion, the United
States finally did ratify the Hague Protocol, but by that time, the
personal-liability limits had long been raised, as we are about to
discuss.
34a
Reg. 7,302 (May 19, 1966), reprinted at 49 U.S.C.A.
§ 1502 (1970). The United States retracted its notice
of denunciation. Dempsey & Milde, supra, at 30. The
Montreal Agreement remained in force among its
signatories for approximately thirty years, and was
applicable to all carriage to, from, or through the
United States.
In the wake of the Montreal Agreement of 1966,
various other international agreements were also
reached to increase liability. In 1974, various
European and Japanese carriers agreed to increase
passenger liability in an informal “Malta Agreement.”
Id. at 31. In 1992, Japanese carriers agreed to strict
liability for personal injury up to 100,000 Special
Drawing Rights per passenger.13 And in 1995, a dozen
airlines
signed
a
“Washington
Intercarrier
Agreement,” endorsed by the International Air
Transport Association, to which the United States
Department of Transportation had given antitrust
immunity to facilitate discussion of the modernization
of international air-carrier liability. Id. at 33–34. This
Washington Intercarrier Agreement, signed in Kuala
Lumpur, imposed strict liability up to 100,000 SDRs
per passenger and removed the “willful misconduct”
provision for liability beyond the cap, replacing that
provision with something more like a negligence
standard that imposes unlimited liability above the
100,000-SDR cap if the airline cannot prove that it
The Special Drawing Right (SDR) “is an artificial ‘basket’
currency developed by the International Monetary Fund.” Letter
of Submittal, 1999 WL 33292734 at *4. On August 21, 2017, one
SDR was worth approximately $1.42. Int’l Monetary Fund, SDR
Valuation (Aug. 29, 2017), https://www.imf.org/external/np/fin/
data/rms_sdrv.aspx.
13
35a
took “all necessary measures” to avoid the injury. The
major United States-based airlines joined the
Washington Intercarrier Agreement within a week of
its initial signing in Kuala Lumpur. Ibid.
Also in the wake of the Montreal Agreement of
1966, aside from the private intercarrier agreements
that were negotiated, the United States continued to
seek amendments to the Warsaw Convention that
would impose higher personal-liability limits. In 1971,
the Guatemala City Protocol came close to achieving
a limit of 1,500,000 gold francs (then equivalent to
approximately $100,000) per passenger, but that
Protocol would have imposed an absolute limitation on
liability, even in cases of willful misconduct. See id. at
22–26. The United States Senate refused to ratify the
Guatemala City Protocol in part because it used the
gold standard for liability limits and because it would
have imposed an absolute, unbreakable limitation on
liability. In 1975, various “Montreal Protocols” were
proposed at a diplomatic conference as part of an
initiative to replace the Warsaw Convention’s gold
standard with the SDR. But the only protocol that
entered into force worldwide was Protocol No. 4,
which affected only cargo liability and not personalinjury liability. See id. at 26–29.
Against that backdrop, the Montreal Convention of
1999 was revolutionary: it replaced not only the
Warsaw Convention but also “all of its related
instruments and . . . eliminate[d] the need for the
patchwork of regulation and private voluntary
agreements” that then dominated the world’s aircarrier liability regime. Letter of Submittal, 1999 WL
33292734, at *7. The Montreal Convention imposes
strict liability for injuries that are compensable under
Article 17(1), up to 100,000 SDRs per passenger, with
36a
a decennial adjustment for inflation. (The first official
adjustment came in 2009, increasing the strictliability limit to 113,100 SDRs—or approximately
$160,000—per passenger. Montreal Convention arts.
21, 24; see Inflation Adjustments to Liability Limits
Governed by the Montreal Convention Effective Dec.
30, 2009, 74 Fed. Reg. 59,017 (Nov. 16, 2009).) Above
that strict-liability limit, a carrier remains liable for
all damage sustained, with no limit, unless the carrier
can prove either that “such damage was not due to the
negligence or other wrongful act or omission of the
carrier or its servants or agents,” or that “such
damage was solely due to the negligence or other
wrongful act or omission of a third party.” Montreal
Convention art. 21. Finally, an exoneration provision
allows a reduction in compensation for injuries caused
by or contributed to by the plaintiff, in the same
manner as a pure-comparative-negligence or purecomparative-fault scheme; this exoneration provision
applies to all claimed damages including those falling
under the strict-liability limit. Montreal Convention
art. 20. In short, the Montreal Convention replaced a
“restrictive,” “pro-airline industry” regime, Jack, 854
F. Supp. at 662, 665, with “a treaty that favors
passengers rather than airlines.” Lexington, 501 F.
Supp. 2d at 908 (quoting Ehrlich, 360 F.3d at 371 n.4
(describing Montreal Convention)). And it did so on
terms that reflected decades of effort by the United
States to abolish the outdated limitations of the
Warsaw Convention.
Moreover, by 1999, when the Montreal Convention
was opened for signature, the aviation industry was
anything but “fledgling,” and the purpose of the
Montreal Convention was not to protect the aviation
industry, but rather to provide a “modernized uniform
37a
liability regime for international air transportation.”
Letter of Submittal, 1999 WL 33292734, at *6.
In light of the great difference between the purpose
of the Warsaw Convention and the purpose of the
Montreal Convention, then, it hardly seems
appropriate for us to look to the purpose of the
Warsaw Convention, as Etihad would have us do in
relying on Ehrlich, in order to arrive at a different
conclusion from one compelled by the plain text of the
Montreal Convention. Our Supreme Court’s Warsaw
Convention jurisprudence has relied consistently on
analysis of the purpose of that treaty as it was
implemented in 1929. See, e.g., Zicherman, 516 U.S.
at 221– 23; Saks, 470 U.S. at 400–05; Floyd, 499 U.S.
at 546. What the historical record makes clear is that
the considerations favoring a close textual reading of
the Montreal Convention—a product of at least five
decades of international negotiations—far outweigh
whatever considerations would weigh in favor of
rewriting the text of the Montreal Convention in order
to accommodate Ehrlich or effectuate the purpose of
the Warsaw Convention, as Etihad would have us do.
C. Relevant Warsaw Convention Litigation
We turn next to (1) relevant decisions of our
Supreme Court under the Warsaw Convention; (2) a
brief summary of our reasons for rejecting Ehrlich in
light of the foregoing discussion of the history and
purpose of the Montreal Convention; and (3) a brief
discussion of relevant district-court cases.
38a
1.
United States Supreme Court Decisions
Under the Warsaw Convention
From 1984 to 2004, the United States Supreme
Court handed down a series of seven opinions
clarifying various aspects of the Warsaw Convention,
most of which involved Article 17. The first of these,
Trans World Airlines, Inc. v. Franklin Mint Corp., 466
U.S. 243 (1984), upheld the Convention’s liability
limit for cargo and is not particularly relevant to our
case. More relevant is the Court’s 1985 decision in Air
France v. Saks, in which it held that “accident” in
Article 17 of the Warsaw Convention means “an
unexpected or unusual event or happening that is
external to the passenger.” Saks, 470 U.S. at 405
(denying passenger’s recovery for deafness caused by
cabin depressurization where the depressurization
was ordinary and the plaintiff was the only passenger
on the flight who was affected).
A year later, the Court decided Chan v. Korean Air
Lines, Ltd., 490 U.S. 122 (1989), holding that the
Warsaw Convention’s limitations applied even if an
airline defendant failed to provide notice of the
Convention in at least 10-point type as the airline
defendant agreed to in the Montreal Agreement of
1966. Chan, 490 U.S. at 135 (holding that although
Korean Air Lines had joined the Montreal Agreement
in 1969 and had violated that agreement by providing
notice of the Convention only in 8-point type, the
Warsaw Convention’s limitations still applied because
the Montreal Agreement did not impose any sanction
at all for failure to provide notice in the required
typeface, let alone the sanction of forfeiting liability
limitations).
39a
In 1991, the Court decided Eastern Airlines v.
Floyd, which as we noted earlier held that “bodily
injury” in Article 17 of the Warsaw Convention does
not allow for the recovery of mental injuries on their
own (that is, with no physical injury incurred
whatsoever), but which “express[ed] no view as to
whether passengers can recover for mental injuries
that are accompanied by physical injuries.” Floyd, 499
U.S. at 552. Next came Zicherman v. Korean Air Lines
in 1996, in which the Court held that although the
Warsaw Convention provided rules for liability and
limitations of liability, it did not govern the measure
(or calculation, so to speak) of damages, which was
instead a matter to be determined in each case by
applicable domestic law. Zicherman, 516 U.S. at 225
(“[Q]uestions of who may recover, and what
compensatory damages they may receive, . . . were
unresolved by the Convention and left to ‘private
international law’—i.e., to the area of jurisprudence
we call ‘conflict of laws,’ dealing with the application
of varying domestic laws to disputes that have an
interstate or international component.”).
In 1999, the Court decided El Al Israel Airlines, Ltd.
v. Tsui Yuan Tseng, in which it held that the Warsaw
Convention provided the sole remedy for personalinjury claims arising from injuries sustained during
international air travel, even if the injured party could
not state a claim for relief under the Warsaw
Convention, in which case no remedy was available at
all. Tseng, 525 U.S. at 161 (alleged assault by El Al
agents during preflight security search that did not
result in bodily injury was not an “accident” and was
not compensable under the Warsaw Convention; the
Warsaw Convention nevertheless continued to
preempt local claims for damages from the assault).
40a
Finally, in 2004, the Court decided Olympic
Airways v. Husain, in which it clarified that finding
an “accident” to have occurred for the purpose of
applying Article 17 does not require identifying a
single “injury producing event” but may rather involve
a chain of causation that results in death or bodily
injury, so long as there is an unexpected or unusual
happening external to the passenger in that chain,
following Saks.14 Husain, 540 U.S. at 651–54 (when
14 At oral argument, there was some confusion about what the
“accident” was in this case: was it the airline’s failure to clean
out the seatback pocket, or was it the moment at which the
needle in the seatback pocket pricked Doe’s finger? Under
Husain, it is not terribly important to identify the moment of the
accident so long as there was an accident. That said, it seems
clear in our case that the “unexpected or unusual happening” was
the moment when the needle pricked Doe’s finger; the airline’s
failure to clean the pocket was perhaps underlying negligence
that allowed the accident to happen. The confusion can be traced
to a line from Saks, in which the Court stated that “the text of
Article 17 [of the Warsaw Convention] refers to an accident
which caused the passenger’s injury, and not to an accident
which is the passenger’s injury.” Saks, 470 U.S. at 398. What the
Court meant there was that the mere fact of an unexpected or
unusual injury (such as a passenger, for example, suffering a
sudden heart attack during a flight) is not itself an accident—
something unexpected and external to the passenger must itself
cause an injury. At oral argument, presumably in response to
Etihad’s argument that attempted to separate Doe’s injury of
bring pricked from the fact that Doe was pricked by a needle, see
Section III.A.1, supra, Doe’s counsel argued that Etihad’s failure
to clean the airplane was the accident and the needlestick was
the bodily injury. Both of those arguments are misplaced: the
needlestick was simply an accident that caused a
contemporaneous bodily injury. Nothing in the Montreal
Convention or in the Warsaw Convention caselaw requires us to
separate the accident from the bodily injury in cases like this one
where there is no temporal gap between the accident and the
bodily injury. Of course, in most cases, there is such a gap, as
41a
asthmatic passenger died after flight attendant
repeatedly but wrongly refused to reseat him away
from the smoking section, the failure to reseat counted
as an “accident,” even though the presence of ambient
smoke in the cabin—not itself an unexpected or
unusual happening on a flight that allowed smoking—
could be viewed as an “injury producing event”).
Saks, Chen, Floyd, and Zicherman were all decided
unanimously, and Franklin Mint and Tseng were both
decided eight to one over the dissent of Justice
Stevens. Husain was decided six to two, with Justice
Scalia dissenting, arguing that because two other
Warsaw Convention signatories (England and
Australia) had rejected the proposition that an
airline’s inaction could constitute an “accident” under
Article 17, and because the text of Article 17 did not
clearly resolve that issue, the Court should instead
have followed the English and Australian decisions.
Husain, 540 U.S. at 659–64 (Scalia, J., dissenting).
These opinions have enjoyed wide acceptance
among our sister signatories, which have given them
(especially Saks, Tseng, and Floyd) at least some
deference and have developed their own jurisprudence
using these opinions as guideposts. See, e.g., Plourde
c. Service aérien F.B.O. inc., 2007 QCCA 739, para. 29
(Court of Appeal of Quebec) (applying Floyd to deny
recovery for purely psychological injury in a Montreal
Convention case); Povey v. Qantas Airways Ltd. (2005)
223 CLR 189, 190 (High Court of Australia) (applying
when an accident such as a crash landing causes subsequent and
separately identifiable injuries—but in cases like ours, or
perhaps in cases of insect bites or physical assaults by flight
crewmembers, the accident and the bodily injury may logically
be one and the same.
42a
Saks and considering Tseng and Husain in Warsaw
Convention case); King v. Bristow Helicopters Ltd
[2002] UKHL 7 (House of Lords) (applying Saks,
Tseng, and Floyd in Warsaw Convention case).
Because these Supreme Court cases analyzed
aspects of the Warsaw Convention that we have no
reason to believe have changed following the
ratification of the Montreal Convention (and that
neither party has argued have changed following the
ratification of the Montreal Convention), it is
reasonable to conclude that these cases form part of
the “precedent” consistent with which, according to
the Explanatory Note (see n.11, supra), the drafters
expected signatories to construe Article 17(1) of the
Montreal Convention. Accordingly, we have adopted
Saks’s definition of “accident,” and our discussion of
damages in Section IV will be guided by Zicherman’s
deference to the forum jurisdiction’s choice-of-law
rules.
2. Why the Second Circuit’s Ehrlich Decision
Does Not Govern Montreal Convention Claims
In light of the discussion in Sections III.A and III.B,
there are several reasons why we decline to adopt
Ehrlich to govern Doe’s claims. First, Etihad’s
argument that we should adopt Ehrlich is
unconvincing in part because of how thorough Ehrlich
itself is: Ehrlich reaches its conclusion only after
plumbing the depths of the original French meaning
of the Warsaw Convention, Ehrlich, 360 F.3d at 376–
78 (analyzing whether “dommage survenu en cas de
. . . lésion corporelle” incorporates a requirement that
the bodily injury [lésion corporelle] cause the damage
[dommage]), French legal materials, id. at 380, the
purpose of the Warsaw Convention, id. at 385, and the
43a
“negotiating history” of the Convention, ibid. Indeed,
if Ehrlich is persuasive, it is persuasive not for the
conclusion it reached but for how it got there, and our
similarly searching analysis leads us to a conclusion
opposite Ehrlich’s.
Second, Ehrlich interpreted the authoritative
French text of the Warsaw Convention, and found
ambiguity in that text (in the original French) that
Ehrlich thought could accommodate a causal
meaning.15 Specifically, Ehrlich examined Frenchlanguage dictionaries and found that the word “cas” in
“en cas de” (the French phrase that was the Warsaw
Convention analogue to the Montreal Convention’s “in
case of”) could actually mean “cause.” Ehrlich, 360
F.3d at 377–78 (“If ‘cas’ means ‘cause,’ then the phrase
‘dommage survenu en cas de . . . lésion corporelle,’ as
those words are used in Article 17, would hold carriers
liable for any ‘damages sustained in the cause of . . .
bodily injury.’ Such a translation is amenable to an
interpretation that would allow passengers to recover
for mental injuries only where they were caused by a
bodily injury.”). Setting aside the fact that the French
word cas does not actually mean “cause” except
perhaps in the same way that we might say a
“hopeless case” is a “lost cause,”16 the range of
ambiguity in the English “in case of” is far, far
narrower than the range of ambiguity that Ehrlich
found in the French “en cas de” and, as we concluded
in Section III.A, notwithstanding any ambiguity in
the English “in case of,” the plain text of the English
15 See n.6, supra.
16 See, e.g., Cas, Grand Dictionnaire Encyclopédique Larousse
(1982).
44a
“in case of” does not contain a requirement that
“damages sustained” be “caused by” bodily injury.
Third, as we discussed in Section III.B, the purpose
of the Montreal Convention vastly differs from the
purpose of the Warsaw Convention, such that we have
no reason to interpret Article 17(1) of the Montreal
Convention in such a way as to serve the purposes of
the Warsaw Convention, as Ehrlich did.
Fourth, although the Ehrlich court stated that its
ruling was necessary to avoid anomalous results, it
appears that under the Montreal Convention,
following Ehrlich would be more rather than less
likely to lead to anomalous results. Ehrlich explained
its reasoning as follows:
The interpretation of Article 17 favored by the
[plaintiffs] would give rise to anomalous and
illogical consequences because “similarly situated
passengers [would be] treated differently from
one another on the basis of an arbitrary and
insignificant difference in their experience.” For
example, a passenger who sustained a mental
injury but no bodily injury would be unable to
look to Article 17 for relief whereas a copassenger who suffered the same mental injury
yet fortuitously pinched his little finger in his
tray table while evacuating and thereby suffered
an unrelated bodily injury would be able to hold
the carrier liable under the Warsaw Convention.
Ehrlich, 360 F.3d at 386.
But our interpretation of Article 17(1) of the
Montreal Convention does not necessarily imply this
result. Ehrlich’s hypothetical here presumably
involves some sort of crash or emergency landing (no
45a
context is provided in Ehrlich itself for the portion
quoted above). Under our interpretation of the
Montreal Convention, if an airplane crash-landed,
then any passenger who sustained a bodily injury
caused by that crash-landing would also be permitted
to recover for mental anguish sustained in that crashlanding—i.e., anguish sustained “in case of” a
compensable bodily injury. If a passenger sustained a
broken leg, that passenger would be able to recover for
the broken leg, for mental anguish caused by the
broken leg, and for mental anguish arising from the
crash-landing that accompanied the broken leg—all of
that would be “damage sustained in case of” the
broken leg. True, another passenger escaping the
same crash-landing physically unscathed would be
barred from recovering damages for mental anguish
alone, but that’s not an “anomalous” result. Rather, it
is a result that is fully consistent with (and compelled
by) the text of the Montreal Convention.
Returning to Ehrlich’s hypothetical of the
passenger who escapes the same crash-landing
entirely unscathed except for a pinched pinky finger:
what result? As we read the Montreal Convention, so
long as that passenger can prove that the accident (i.e.
the crash-landing) caused the injury to the pinky
finger, that passenger would be able to recover both
for the physical injury to the finger and for mental
anguish sustained—and that passenger would be able
to recover mental anguish sustained on the same
terms as the passenger who suffered the broken leg.
None of these outcomes produce an “illogical or
unreasonable result” that might caution against our
ruling today. Int’l Union, United Auto., Aerospace &
Agric. Implement Workers of Am. v. Brock, 816 F.2d
761, 766 (D.C. Cir. 1987). Thus, we are not persuaded
46a
by Ehrlich that we must read in an additional
causation requirement to avoid interpreting the
Montreal Convention in a manner that would produce
absurd results.
To the contrary, it would be odd to require the
passenger to prove which mental injuries in fact were
caused by the physical injury as opposed to being
caused more generally by the accident. In our crashlanding hypothetical, a passenger might, for example,
be conscious for the duration of the crash-landing and
then realize that he has suffered a grievous injury to
his leg. Perhaps the passenger fears losing the leg for
hours or days while he is in the hospital. And perhaps
the passenger, who has a compensable bodily injury
(bruised ribs and a broken leg), suffers mental
anguish and other emotional damages—some as a
result of the fear of losing the leg (which surely would
be caused by the bodily injury, even if the leg was
ultimately not lost), and some as a result of having
experienced the crash-landing.
It would not “favor[ ] passengers,” Ehrlich, 360 F.3d
at 371 n.4, to require the passenger to prove which
mental harms were caused directly by the broken leg
as opposed to being caused more generally by the
accident. After all, causation is difficult. Surely, for
example, harm such as insomnia, fear of flying (or
other fears), or emotional distress might initially
result from the crash-landing but then be exacerbated
by the bodily injury. Would only the portion of harm
traceable and subsequent to the bodily injury be
recoverable? Or, what if some of the harm resulted
from the realization of an imminent crash-landing—
should that harm be excluded from recovery because
its cause preceded the accident, while harm occurring
47a
together with or flowing from the crash-landing would
be recoverable?
Thus, at the end of the day, adopting Ehrlich would
mean requiring Doe and other Montreal Convention
plaintiffs to prove causation in a way that burdens the
injured passenger far more than the text requires;
that would be an anomalous result.
For all these reasons, we decline to adopt Ehrlich.
3.
Relevant District Court Cases
We now turn to Jack, the district-court opinion that
Ehrlich followed, and which was the first districtcourt opinion to analyze the text and history of the
Warsaw Convention at any serious length. Jack
followed on the heels of the Supreme Court’s decision
in Floyd. In the Jack case, where fire consumed a
plane following an aborted takeoff and crash but all
the passengers survived, the court addressed the
question whether Floyd’s bar to recovering purely
mental damages under the Warsaw Convention also
meant that mental anguish was recoverable only if
caused by bodily injury. Jack, 854 F. Supp. at 657. The
court posited four theories for the recovery of
emotional-distress damages under Article 17:
1.
Emotional-distress damages
recoverable. Id. at 665.
are
never
2.
Emotional-distress damages are always
recoverable as long as the plaintiff has a
bodily injury, even if the bodily injury is
wholly unrelated to the emotional distress.
Id. at 665–66 (notably, the court found that
this approach “would read emotional distress
as damages resulting from the accident (as
opposed to the injury), which is difficult to do
48a
under the wording of Article 17,” although
the court did not explain the difficulty). This
theory is broader than our interpretation, in
that it allows recovery for mental injuries
that are wholly unrelated to a compensable
bodily injury, which would seem to capture
more than just those mental injuries
“sustained in case of” a compensable bodily
injury.
3.
Emotional-distress damages are recoverable
as “an element of the damages for bodily
injury,” but “need not be about the injury,” so
long as the distress occurs “at the same time
or later than the bodily injury.” Id. at 666–67
(noting that in a plane crash that caused an
injury, distress about the plane crash would
be recoverable so long as it occurred after the
injury, just as federal common law would
allow the victim of a racially motivated false
arrest to recover for emotional distress
subsequent to physical injuries sustained,
and not only for the minor physical injuries).
This theory attempts to limit the scope of
recovery to something narrower than what
the second theory would allow, but it does so
by reading in a temporal element, which is
not supported by the text of the treaty.
4.
Emotional-distress damages are recoverable
only if they are “caused by the bodily injury.”
Id. at 667–68. This was the approach Jack
settled on and that Ehrlich adopted.
The problem with this purported tetralemma is that
it omits a plausible fifth option— namely, our
conclusion that mental injuries are recoverable if they
49a
are caused either by a compensable bodily injury or by
the accident that causes a compensable bodily injury.
Thus, while Jack’s theoretical framework produces an
elegant syllogism in support of Jack’s fourth theory, it
is not one that we have reason to follow in interpreting
the Montreal Convention. Plus, as we noted above,
Jack expressly acknowledged that its fourth theory
“read a causal component into” the Warsaw
Convention. Id. at 668.
Etihad relies not only on Jack but also on
Rothschild v. Tower Air, Inc., 1995 WL 71053 (E.D.
Pa. Feb. 22, 1995). In Rothschild, a passenger (Joan
Rothschild) bound for New York from Tel Aviv
reached into a seatback pocket and—just like Doe—
was pricked on the finger by a hypodermic needle that
lay hidden within. Id. at *1. Mrs. Rothschild sued the
airline for damages under the Warsaw Convention
and Pennsylvania state law. The airline removed the
case from Pennsylvania state court to federal district
court, where Mrs. Rothschild proceeded to jury trial
and won a $10,000 verdict for her injuries. But,
although Mrs. Rothschild had been “permitted to
testify about, and recover for, her pain and suffering
flowing from the needle prick, such as any pain and
suffering she experienced from the various tests that
were performed on her,” Mrs. Rothschild “was not
permitted to testify about her fear of contracting AIDS
and/or hepatitis because she did not show any
exposure to these diseases, and permitting recovery
under these circumstances would be purely
speculative.” Id. at *2. Mrs. Rothschild contended that
the court improperly prevented her from testifying
about her fear of AIDS and hepatitis and she thus
moved for a new trial, presumably in pursuit of a
larger damages award; her motion was denied.
50a
Etihad relies on the denial of Mrs. Rothschild’s
motion for new trial to support its contention that
“fear of AIDS/contagion is too speculative to be
recoverable absent actual exposure.” Appellee’s Br.
20. But, for several reasons, Rothschild does not help
Etihad. First, the Rothschild court expressly applied
Pennsylvania state law, rather than the Warsaw
Convention, in determining whether Mrs. Rothschild
could recover for fear of contagion. Id. at *1 n.2, *2.
The court noted that the parties “agree[d] that the
Warsaw Convention [was] applicable” but that they
had nevertheless based their arguments on
Pennsylvania state law. Id. at *1 n.2. “Due to this
apparent uncertainty of the parties as to the
applicable law,” the court stated its intention to
“analyze this matter under both the Warsaw
Convention and Pennsylvania law.” Ibid. But the
court did not actually apply the Warsaw Convention
to determine which of Mrs. Rothschild’s claims were
cognizable; rather, the court cited Jack for the general
proposition that emotional distress was recoverable
only if it “related to and flow[ed] from” physical injury,
id. at *1, and the court then turned to various cases
decided under Pennsylvania state law to hold that “in
order to recover for the fear of contracting a disease, a
plaintiff must show that there has been some
exposure to the disease.” Id. at *2. Whether
Pennsylvania state law does or does not require a
plaintiff to prove actual exposure to a disease to
recover for fear of contagion is a question that is not
relevant to the matter before us, so this line of
reasoning from Rothschild does not help Etihad.
Second, unlike Doe, Mrs. Rothschild was tested for
AIDS only once—the day after the incident—and the
Rothschild court’s denial of her motion for new trial
relied on the fact that “[d]uring the seven months
51a
between the injury and trial, Mrs. Rothschild was
never again tested.” Id. at *3. The Rothschild court
might thus have had good reason to find, as a matter
of fact, that Mrs. Rothschild’s claimed fear of
contagion was too speculative to support additional
damages.
Third, the fact that Mrs. Rothschild proceeded to
trial at all would seemingly help Doe more than it
helps Etihad, especially in light of the fact that we are
reviewing the district court’s grant of partial
summary judgment. How reasonable or speculative
Doe’s fear of contagion was is not a question of
whether Etihad may be liable to Doe but is rather a
question of fact (and a damages question, at that) that
is properly resolved at trial rather than at summary
judgment.
In sum, neither Jack nor Rothschild provides any
basis on which to affirm the grant of partial summary
judgment for Etihad.
D.
The Montreal Convention in Our
Sister Circuits
We now turn to recent Montreal Convention
decisions of our sister circuits. Since the ratification of
the Montreal Convention, some of our sister circuits
have applied Ehrlich in deciding Montreal Convention
cases, but—so far, at least—they have done so without
seriously considering either the text or the purpose of
the Montreal Convention, and they have done so only
in cases in which the outcome was not materially
affected by the decision to apply Ehrlich rather than
our interpretation of the text of Article 17(1).
The Eleventh Circuit, for example, affirmed a grant
of summary judgment against a Montreal Convention
plaintiff who traveled from Hawaii to Mumbai, India,
52a
and was refused entry (and ordered to return to the
United States) by the Indian government for lack of
proper immigration documentation. He subsequently
claimed that Korean Air Lines was liable for various
alleged “accidents” including (1) an alleged theft of
$2000 cash from him; (2) denial of access to medicine
while his luggage was checked; (3) failure to call a
doctor for him while in Mumbai or in transit in South
Korea; (4) failure to provide diabetic meals on the
return flight from Mumbai; (5) “detention” and lack of
“proper hydration” in a holding area in South Korea;
and (6) failure to assist him when his legs swelled and
caused him to fall. Jacob v. Korean Air Lines, 606 F.
App’x 478, 482 (11th Cir. 2015) (per curiam) (first
holding that plaintiff had failed to prove that any
“accident” had happened on board that had caused
him a bodily injury, then holding alternatively that
plaintiff’s damages were unrecoverable emotional
damages). In denying recovery for “subsequent
physical manifestations of an earlier emotional
injury,” the court quoted Ehrlich’s statement that
“mental injuries are recoverable under Article 17 only
to the extent that they have been caused by bodily
injuries.” Id. at 482 (quoting Ehrlich, 360 F.3d at 400).
Jacob does not conduct any analysis of the text of
the Montreal Convention; in a footnote, the opinion
notes that “[c]ourts interpreting the Montreal
Convention may rely on authority concerning its
predecessor, the Warsaw Convention, where
provisions of both conventions are similar.” Ibid.
(citing Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1177
(11th Cir.), cert. denied, 135 S. Ct. 759 (2014)).
Notably, in Campbell, on which Jacob relies to
support its adoption of Warsaw caselaw, the plaintiff
had failed to state a claim under Article 17(1) of the
Montreal Convention because his only claimed
53a
damages were economic losses arising from a delay.
Campbell, 760 F.3d at 1167 (“He stated no Article 17
claim, however, because he did not allege injuries
caused by an ‘accident’ . . . .”).
Thus, neither Jacob nor Campbell had reason to
consider whether mental damages accompanying a
compensable bodily injury were recoverable under
Article 17(1) of the Montreal Convention. Nor did
Jacob’s use of Ehrlich amount to a reasoned decision
to adopt Ehrlich as opposed to a competing approach
to recovery for mental anguish under the Montreal
Convention, because there was no “accident” in Jacob
in the first place.
In its partial-summary-judgment order, the district
court below cited Bassam v. Am. Airlines, Inc., 287 F.
App’x 309, 317 (5th Cir. 2008), an unpublished
decision of the Fifth Circuit in which that court cited
Ehrlich to support the proposition that “courts have
held that emotional injuries are not recoverable under
Article 17 of the Montreal Convention or Warsaw
Convention unless they were caused by physical
injuries.” Bassam, 287 F. App’x at 317 (emphasis
added). But Bassam was a case in which the plaintiff’s
only claimed injuries were emotional and not physical:
in Bassam, the plaintiff sued the airline because one
of her checked bags was lost for several months during
which time the plaintiff suffered “embarrassment and
upset of not being able to dress and appear in public
as was her prior practice.” Id. at 311. Indeed, the
Bassam opinion itself makes clear that in citing
Ehrlich, Bassam was not deliberately interpreting “in
case of” to mean “caused by” (that is, Bassam was not
deliberately adopting Ehrlich to define “in case of” in
the Montreal Convention), but rather was
establishing that the plaintiff could not show any
54a
accident or bodily injury that would be required to
recover for emotional injuries under Article 17(1) of
the Montreal Convention:
Bassam has not alleged any physical injury.
Moreover, even if her claim of “embarrassment
and upset” could be construed as such, that injury
was not caused by an accident on board the
aircraft or in the course of embarking or
disembarking. Therefore, Bassam has failed to
establish carrier liability for emotional distress
damages under Article 17(1).
Id. at 317. Etihad’s reliance on Bassam, and the
district court’s use of Bassam to support its grant of
partial summary judgment in this case, are thus
unfounded.17
Finally, it is worth noting that some courts have
looked to the relative histories of the Warsaw and
Montreal Conventions to support reaching a different
conclusion under the Montreal Convention than what
the Warsaw Convention might have dictated. See
17 Other than Bassam, the only other Montreal Convention case
cited by the district court is Baah v. Virgin Atl. Airways, 473 F.
Supp. 2d 591, 595–56 (S.D.N.Y. 2007). The court cited Baah to
support the proposition that “[c]ourts routinely look to legal
precedent interpreting the Warsaw Convention for substantively
equivalent provisions of the Montreal Convention.” But Baah
dismissed the plaintiff’s claims for lack of subject-matter
jurisdiction, and the “substantively equivalent provisions” of the
Warsaw and Montreal Conventions that Baah analyzed were the
jurisdictional requirements in each treaty (and specifically the
phrase “place of destination” in each)—not Article 17, and not
any provision that would be subject to reinterpretation in light
of the ratification of the Montreal Convention. All the cases cited
by the district court other than Bassam and Baah are Warsaw
Convention decisions.
55a
Pierre-Louis v. Newvac Corp., 584 F.3d 1052, 1058,
1058 n.7 (11th Cir. 2009) (affirming the dismissal of
Montreal Convention claims on forum non conveniens
grounds when parallel Warsaw Convention claims
would not have been subject to such dismissal;
distinguishing the instant case from “cases [that]
involved interpretation of the Warsaw Convention, a
predecessor to the Montreal Convention drafted in
1929, at which time forum non conveniens, in its
current form, was not recognized under U.S. law”).
E. Relevant Foreign Law
When we interpret a treaty provision, “the opinions
of our sister signatories [are] entitled to considerable
weight.” Saks, 470 U.S. at 404 (quoting Benjamins v.
British European Airways, 572 F.2d 913, 919 (2d Cir.
1978)); see also Husain, 540 U.S. at 660 (Scalia, J.,
dissenting) (“We can, and should, look to decisions of
other signatories when we interpret treaty provisions.
Foreign constructions are evidence of the original
shared understanding of the contracting parties.”).
Most Montreal Convention litigation in the
European courts has involved the interplay between
the Convention and various European Union
Regulations, specifically in cases of delays and lost
baggage. See, e.g., Case C-94/14, Flight Refund Ltd v.
Deutsche Lufthansa AG, 2016 E.C.R. 148 (Court of
Justice) (delay-compensation claim); Case C-63/09,
Walz v. Clickair SA, 2010 E.C.R. I-4239 (Court of
Justice) (lost-baggage claim). But some cases have
involved the interpretation of Article 17(1). The
Supreme Court of the United Kingdom has
reaffirmed, for example, that “injury to feelings . . .
related to [a passenger’s] treatment during the
process of embarkation and during the flight, which
56a
made him feel humiliated” is not a “bodily injury”
under Article 17(1) of the Montreal Convention. Hook
v. British Airways Plc [2014] UKSC 15, 2014 WL
795206, at *6.
One Canadian court, engaging in a mode of analysis
substantially similar to ours in this case, applied
Floyd and considered Ehrlich in declining to interpret
“bodily injury” in Article 17(1) of the Montreal
Convention to include purely psychological injuries
caused by an emergency landing. Plourde, 2007 QCCA
739, at para. 29.
None of these cases, however, confronted the
question of whether mental anguish that accompanies
a compensable bodily injury, rather than only mental
anguish caused by a bodily injury, is recoverable
under Article 17(1).
Indeed, the only foreign case we can find that has
confronted that question is a decision of a trial court
in British Columbia, which—citing Floyd and Ehrlich
favorably—required a “sufficient causal link” between
the bodily injury and the mental injury in order for
the mental injury to be compensable:
In some cases, the causal link between the bodily
injury and the mental injury will be clear. For
example, an airline passenger who suffers burns
on his or her face as a result of an aircraft fire will
undoubtedly suffer mental anguish. So long as
the bodily injury is proven, the mental injury
proven to have been caused by it will be
compensable.
Wettlaufer v. Air Transat A.T. Inc., 2013 BCSC 1245,
para. 82 (2013) (where a passenger aboard an Air
Transat flight from Vancouver to Cancun was struck
57a
by “an unsecured food cart” upon landing, the
passenger recovered money damages under Article
17(1) to compensate her for both her bodily injury and
the emotional damages resulting from her fear of
being “bumped” while driving or walking in public,
but not to compensate for fear of flying “because there
is not a sufficient causal link between such a fear and
the whiplash-type injury” sustained).
Despite Wettlaufer’s “sufficient causal link”
language, the relief ordered in Wettlaufer is entirely
consistent with the relief Doe seeks here and with our
interpretation of Article 17(1): the “accident” that
harmed Wettlaufer was being struck by the food cart,
her “bodily injury” included the resulting bruises on
her back and neck, and her recoverable emotional
damages— fear of being “bumped”—seemingly must
have been caused not by the bruises themselves, but
from the fact that she was bumped by a food cart (that
is—again, despite the language used by the court—
her emotional damages were caused by the accident
that caused the bodily injury, and those emotional
damages were nevertheless recoverable). Further,
denying Wettlaufer’s recovery for fear of flying is
consistent with the text of Article 17(1) as well,
because fear of flying might not be the sort of fear
“sustained in case of” bruises caused by a runaway
food cart. Wettlaufer does not seriously explore the
language “damage sustained in case of,” and it is only
the decision of a provincial trial court rather than a
sister signatory’s high court. Even if we were to accord
it the same weight as a decision of a high court,
however, it would not give us reason to believe that
our decision today is at odds with the “shared
understanding of the contracting parties” to the
Montreal Convention. Husain, 540 U.S. at 660.
58a
F. The Montreal Convention Imposes
Liability for Emotional and Mental Harms
Accompanying a Compensable Bodily Injury
In light of the foregoing discussion, we now provide
a brief summary of our decision and its application to
Doe’s case. For ease of reference, we state again the
full text of Article 17(1) of the Montreal Convention:
The carrier is liable for damage sustained in case
of death or bodily injury of a passenger upon
condition only that the accident which caused the
death or injury took place on board the aircraft or
in the course of any of the operations of
embarking or disembarking.
Montreal Convention art. 17(1).
To prevail on a claim for damages under Article
17(1), a plaintiff must prove that (1) there was an
“accident,” defined as “an unexpected or unusual
event or happening that is external to the passenger,”
Saks, 470 U.S. at 405; (2) the accident happened
either “on board the aircraft” or during “the operations
of embarking or disembarking”; and (3) the accident
caused “death or bodily injury of a passenger.” The
carrier is then liable for damage sustained, which we
interpret to include emotional or mental damages, so
long as they are traceable to the accident, regardless
of whether they are caused directly by the bodily
injury.
A simple example serves to illustrate our
understanding. Consider a case in which an overhead
bin unexpectedly opens in flight, causing a suitcase to
fall out and strike a passenger in the eye. The
passenger might sustain bodily injury—bruises,
broken or fractured bones, a concussion, etc.—and the
59a
passenger might sustain mental anguish such as the
fear of losing sight in the injured eye or a fear of being
struck by flying objects. The “accident” would be the
suitcase striking the passenger. (The faulty overhead
bin or latch, like the airline’s failure to clean out the
seatback pocket in Doe’s case, might be underlying
negligence that precipitated the accident.) The
accident happened on board the aircraft. And the
accident caused bodily injury. Thus, the carrier would
be liable for the passenger’s damage sustained as the
result of being struck by the suitcase—including such
mental anguish as fear of losing sight, even if the
passenger ultimately did not suffer a loss of vision,
and even if the fear of losing sight was not caused
directly by a bodily injury.
The following diagram illustrates this result:
Under Etihad’s framework, a plaintiff seeking to
recover damages for mental anguish would instead
have to prove that an accident caused bodily injury,
which in turn caused the mental anguish. But that
framework is neither found in the text of the Montreal
Convention nor supported by the history and purpose
60a
of the Montreal Convention, nor do relevant decisions
of the courts of the United States or sister signatories
give us reason to adopt Etihad’s understanding.
Here, the accident was the needle pricking Doe’s
finger. The accident happened on board Etihad’s
aircraft. And the accident caused bodily injury, as
Etihad has conceded. Etihad is therefore liable for
Doe’s damage sustained, which includes both her
physical injury and the mental anguish that she is
able to prove that she sustained. Assuming that, on
remand, Doe is able to prove fear of contagion or other
mental anguish, Etihad is liable for damages arising
from that anguish regardless of whether the anguish
was directly caused by the physical hole in Doe’s
finger or by the fact that Doe was pricked by a needle.
The diagram at page 14, supra, illustrates this result.
IV
Michigan Damages Laws Govern the Measure
of Doe’s Recovery and Any Recovery by Doe’s
Husband for Loss of Consortium
Having determined that the Montreal Convention
does not preclude Etihad’s liability for Doe’s mentalanguish claims, we turn to the choice-of-law question
of whose law governs the measure of any recovery to
which Doe is entitled. Although the district court did
not expressly (or implicitly) address this question in
its order granting partial summary judgment, the
question was raised in the parties’ summaryjudgment pleadings below. On appeal, Plaintiffs’ brief
includes a lengthy discussion of whether federal
common law or Michigan law determines the extent of
Doe’s recovery for mental anguish. Appellants’ Br. 23–
29. Etihad responds at even greater length in its brief.
Appellee’s Br. 26–37. For the reasons that follow,
61a
Michigan law governs both the measure of Doe’s
recovery and the ability of Doe’s husband to recover
damages for loss of consortium.
Article 29 of the Montreal Convention clarifies that
actions under Article 17(1), such as Plaintiffs’ action,
are brought “without prejudice to the question as to
who are the persons who have the right to bring suit
and what are their respective rights.” Montreal
Convention art. 29 (emphasis added). As we discussed
in Section III.C.1, supra, the United States Supreme
Court has held that the effect of the parallel provision
in the Warsaw Convention (Article 24) is to leave to
the domestic law of the contracting parties the
determination of how a successful plaintiff’s damages
are measured. See Zicherman, 516 U.S. at 224–26.
Lower courts have consistently applied Zicherman to
hold that the measure of damages is to be fixed
according to whatever law (i.e., according to whatever
choice-of-law rules) would apply in a domestic-law
case, and Zicherman is one of the Warsaw Convention
“precedents” that guides our interpretation of the
Montreal Convention. See Section III.A & n.11, supra;
see also Pescatore v. Pan Am World Airways, Inc., 97
F.3d 1, 4–5 (2d Cir. 1996) (applying Zicherman to
reject the argument that a uniform “federal common
law” should provide the measure of damages for
plaintiffs bringing claims on behalf of victims killed in
the bombing of Pan Am Flight 103 over Lockerbie,
Scotland, and instead conducting a choice-of-law
analysis to conclude that Ohio damages laws applied
and that Ohio law allowed plaintiffs to recover
damages for loss of society, support, and services, and
for grief).
62a
In this case, then, the district court should measure
Doe’s damages by whatever law would apply to an
analogous case in the Eastern District of Michigan. An
analogous case would be a diversity action for
personal-injury damages. A federal court exercising
diversity jurisdiction applies the choice-of-law rules of
the state in which it sits. Klaxon Co. v. Stentor Elec.
Mfg. Co., 313 U.S. 487, 496 (1941). And “a federal
court in a diversity action is obligated to apply the law
it believes the highest court of the state would apply
if it were faced with the issue.” Mahne v. Ford Motor
Co., 900 F.2d 83, 86 (6th Cir. 1990).
Our court has previously recognized Michigan’s
strong presumption in favor of applying Michigan law
in Michigan courts:
Michigan’s choice of law framework is established
in two Michigan Supreme Court decisions:
Olmstead v. Anderson, 428 Mich. 1, 400 N.W.2d
292, 302 (1987), and Sutherland v. Kennington
Truck Serv., Ltd., 454 Mich. 274, 562 N.W.2d 466,
471 (1997). In a tort action, Michigan courts
recognize a presumption in favor of lex fori and
apply Michigan law “unless a ‘rational reason’ to
do otherwise exists.” Sutherland, 562 N.W.2d at
471. The two-step test for determining whether
such a rational reason exists was distilled in
Sutherland from Olmstead as follows:
First, we must determine if any foreign state has
an interest in having its law applied. If no state
has such an interest, the presumption that
Michigan law will apply cannot be overcome. If a
foreign state does have an interest in having its
law applied, we must then determine if
63a
Michigan’s interests mandate that Michigan law
be applied, despite the foreign interests.
Id.
Standard Fire Ins. Co. v. Ford Motor Co., 723 F.3d
690, 693 (6th Cir. 2013).
Neither party here has asserted a “rational reason”
for us to hold that any law other than Michigan’s
damages laws should apply to govern the measure of
Plaintiffs’ recovery, including any recovery by Doe’s
husband for loss of consortium. Plaintiffs are
Michigan residents, so there is no reason to apply the
substantive law of any state in the United States
other than Michigan. And Etihad has not argued that
the law of the United Arab Emirates should apply.
Michigan’s substantive damages laws therefore
govern the measure of any recovery that Plaintiffs
win. On remand, assuming Doe wins a judgment, the
district court is free to determine, within the bounds
of what Michigan damages laws allow, what specific
kinds of damages—such as emotional distress, mental
anguish, fear of contagion, loss of consortium, and so
on—Plaintiffs are entitled to recover, in “grant[ing]
the relief to which each party is entitled.” Fed. R. Civ.
P. 54(c).
V
The Warsaw Convention ruled aviation law for
more than seventy-five years. Over the decades,
despite various amendments, courts have routinely
interpreted the Warsaw Convention in line with its
purpose as drafted in 1929. Etihad urges us to
interpret the Montreal Convention in line with that
same purpose.
64a
But the Montreal Convention is not an amendment
to the Warsaw Convention. The Warsaw Convention
provided limitations of liability to protect fledgling
airlines from litigious passengers; the Montreal
Convention provides limitations of liability to protect
(still litigious) passengers from the not-so-fledgling
airlines. To adopt Etihad’s reading of the Montreal
Convention would distort the treaty’s text and would
frustrate rather than serve its purpose.
Having determined that the Montreal Convention
imposes liability for the damages that Doe has
alleged, and that the damages laws of Michigan
govern the measure of any judgment Plaintiffs win,
we REVERSE the district court’s partial-summaryjudgment order and REMAND this matter for further
proceedings consistent with this opinion.
65a
Opinion and Order Granting Defendant’s
Motion for Partial Summary Judgment from
the United States District Court for the
Eastern District of Michigan (October 13, 2015)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Case No. 13-14358
Hon. John Corbett O’Meara
———————————————————
JANE DOE and JOHN DOE,
husband and wife,
Plaintiffs,
v.
ETIHAD AIRWAYS, P.J.S.C.,
Defendant.
———————————————————
OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR PARTIAL
SUMMARY JUDGMENT
Before the court is Defendant Etihad Airways,
P.J.S.C.’s motion for summary judgment, which has
been fully briefed. For the reasons explained below,
Defendant’s motion is granted.
66a
BACKGROUND FACTS
On August 13, 2013, Plaintiff Jane Doe flew on an
Etihad Airways flight from Abu Dhabi to Chicago.
During the flight, she reached into the seat back
pocket and felt a sharp pain. She withdrew her hand
and saw blood on her finger. Checking the seat back
pocket, Plaintiff found a hypodermic syringe. Etihad
personnel provided a bandage for Plaintiff and
disposed of the syringe.
The next day, Plaintiff saw her physician who, after
consulting with an infectious disease specialist,
ordered tests for HIV and hepatitis and prescribed
anti-viral drugs to be taken for thirty days. Plaintiff
was tested three times for HIV in the year after her
needle injury; she was not found to have developed
HIV.
Plaintiff filed this action on October 13, 2013, for
her injuries sustained as a result of the needle stick.
Plaintiff contends that she suffered emotional distress
and mental anguish as a result of her injury,
particularly a fear of developing HIV or hepatitis. As
result of her uncertain status, she abstained from
sexual relations with her husband, John Doe, who
alleges a loss of consortium claim.
LAW AND ANALYSIS
I. Standard of Review
Defendant seeks partial summary judgment
pursuant to Federal Rule of Civil Procedure 56.
Summary judgment is appropriate if “there is no
genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). See also Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
67a
587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986).
II. Montreal Convention
Plaintiff’s claims arise under Article 17 of the
Montreal Convention, an international treaty that
governs the liability of international air carriers. See
Convention for the Unification for Certain Rules for
International Carriage by Air, May 28, 1999, ICAO
Doc. No. 9740 (entered into force on Nov. 4, 2003)
reprinted in S. Treaty Doc. No. 106–45, 1999 WL
33292734 (2000). The Montreal Convention
superseded the Warsaw Convention, but retained
many of the Warsaw Convention’s substantive
provisions. See generally Ehrlich v. American Airlines,
Inc., 360 F.3d 366, 371 n.4 (2d Cir. 2004). Courts
routinely look to legal precedent interpreting the
Warsaw Convention for substantively equivalent
provisions of the Montreal Convention. See Baah v.
Virgin Atlantic Airways Ltd., 473 F. Supp.2d 591, 59596 (S.D.N.Y. 2007).
Article 17 of the Montreal Convention provides:
The carrier is liable for damage sustained in case
of death or bodily injury of a passenger upon
condition only that the accident which caused the
death or injury took place on board the aircraft or
in the course of any of the operations of
embarking or disembarking.
Montreal Convention, art. 17.1. Defendant argues
that Plaintiff may not recover emotional distress
damages under this provision, which provides liability
“for damage sustained in case of death or bodily
injury.” Id. (emphasis added).
68a
It is well settled that purely emotional distress
damages – which do not arise from a bodily injury –
are not recoverable under the Warsaw or Montreal
Conventions. See Eastern Airlines v. Floyd, 499 U.S.
530, 552-53 (1991). Rather, “recovery for mental
injuries is permitted only to the extent the distress is
caused by the physical injuries sustained.” In re Air
Crash at Little Rock Arkansas, on June 1, 1999, 291
F.3d 503, (8th Cir. 2002), cert. denied, Lloyd v.
American Airlines, Inc., 537 U.S. 974 (2002). See also
Ehrlich v. American Airlines, Inc., 360 F.3d 366, 400
(2d Cir. 2004) (under Warsaw Convention, “a carrier
may be held liable under Article 17 for mental injuries
only if they are caused by bodily injuries.”); Bassam v.
American Airlines, Inc., 287 F. App’x 309, 317 (5th
Cir. 2008) (“As directed by the Montreal Convention,
in looking to existing judicial precedent, courts have
held that emotional injuries are not recoverable under
Article 17 of the Montreal Convention or Warsaw
Convention unless they were caused by physical
injuries.”).
Defendant argues, and the court agrees, that
Plaintiff’s mental distress damages were not caused
by her physical injury. It is not the physical needle
prick itself that caused Plaintiff’s distress, but the
possibility that she may have been exposed to an
infectious disease. Plaintiff’s emotional distress
damages are not available under the Montreal
Convention, which provides the exclusive remedy. See
El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 161
(1999) (recovery for injury suffered on board aircraft
“if not allowed under the Convention, is not available
at all.”).
69a
ORDER
Accordingly, IT IS HEREBY ORDERED that
Defendant’s motion for partial summary judgment is
GRANTED.
s/ John Corbett O’Meara
United St
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